Exhibit 10.5
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement")
dated effective as of March 31, 2009, between United Mine Services,
Inc., an Idaho corporation (the "Purchaser"), and Mine Fabrication
& Machine, Inc., an Idaho corporation, (the "Seller"), and Fred
A. and Linda M. Forsberg, individually and as Co-Trustees of the
Family Trust of Fred A. Forsberg and Linda M. Forsberg dated
September 26, 2008 (collectively the "Forsbergs").
RECITALS
WHEREAS, the Seller and the Forsbergs
desire to sell and the Purchaser desires to purchase certain
assets, properties, and rights of the Seller and the
Forsbergs.;
WHEREAS, the parties hereto agreed to
that certain Stock Purchase and Sale Agreement on April 11, 2007,
as amended, and the transaction contemplated thereunder failed to
close; and
WHEREAS, the parties hereto entered
into a Letter of Intent on November 6, 2008, outlining the
transaction contemplated herein and calling for a mutual release of
claims by the parties upon Closing.
NOW, THEREFORE, in consideration of the
covenants, agreements, representations, and warranties contained in
this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS;
PURCHASE PRICE; CLOSING
1.1.
Purchase and Sale of Assets . Subject to the terms and
conditions of this Agreement, on the Closing Date (as defined
herein) and except for those assets listed in paragraph 1.2 below:
(i) the Seller shall sell, transfer, convey, assign, and deliver to
the Purchaser, and the Purchaser shall purchase, acquire, and
accept from the Seller, all assets of the Seller, lists of the
Seller's customers, vendors, and employees (including names,
addresses, and wage rates, but not employee files) and all of
Seller's right, title, and interest in and to its goodwill and the
names "Mine Fab", "Mine Fab & Machine, Inc.", "Mine Fabrication
& Machine, Inc.", and any other name under which the Seller is
known and does business (such rights hereinafter referred to as the
"Trade Name") and; (ii) the Forsbergs shall sell and the Purchaser
shall purchase certain real
ASSET PURCHASE AGREEMENT, Page 1
property described in Section 2.5 (all such
assets referred to herein as the "Transferred Assets").
1.2.
Excluded Assets . Notwithstanding any other provision of
this Agreement, the Seller shall retain and shall not transfer to
Purchaser a Seller-owned policy of life insurance on the life of
Fred Forsberg; the pickup truck used by Fred Forsberg owned by the
Seller; Seller-owned cash, bank accounts, investments, employee
files, computers (including all software and hardware) and
corporate books and records with regard to any activity of the
Seller for any period preceding Closing.
1.3.
No Assumption of Liabilities or Obligations .
Notwithstanding anything to the contrary in this Agreement, the
Purchaser shall not assume any liabilities or obligations of the
Seller except the Seller's open purchase orders and executory
contract obligations that were entered into in the normal course of
business existing for the Seller, at Closing as disclosed on
Schedule 2.13 hereto, and nothing herein shall be construed as
imposing any liability or obligation upon the Purchaser other than
those specifically provided for herein. Seller and Forsbergs shall
not assume any liability or obligations of the Purchaser, and
nothing herein shall be construed as imposing any liability or
obligation upon the Seller and Forsbergs other than those
specifically provided for herein. Notwithstanding any other
provision herein, Seller shall be responsible for payment of all
employee salaries and payroll taxes (i.e., FICA, FUTA, federal
income tax withholding, Idaho State income tax withholding, SUDA,
and L&I taxes, etc.) through the Date of Closing, and Purchaser
shall be responsible for payment of said salaries and payroll taxes
owed from the day immediately following the Date of Closing
forward. Seller and Forsbergs and Purchaser acknowledge and agree
that all employees of the Seller are employed "at will".
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Purchase Price . The aggregate
consideration for the Transferred Assets shall be $2,700,000 [the
"Purchase Price "] payable to the Seller and Forsbergs by the
Purchaser as described in Section 1.4(b). The Purchase Price
includes $250,000 to be allocated to inventory existing at Closing,
which amount shall be adjusted to the lesser of the following for
each item of inventory: (i) the Seller's actual cost of each item
of inventory existing at Closing, or (ii) the fair market value of
each item of inventory. The aggregate of each item of inventory so
valued shall be referred to as "Inventory Value". Work in progress
inventory shall not be included in determining Inventory Value.
Inventory Value shall not include any inventory located on the Real
Property that is owned by F&H Mine Supply. Inventory Value in
excess of $250,000 shall increase the total Purchase Price.
Inventory Value less than $250,000 shall decrease the total
Purchase Price. At an agreed upon date, but no more than one week
before the Closing Date, Seller and Purchaser shall meet to inspect
the inventory and determine in good faith the Inventory Value to
include in the purchase price, and shall
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ASSET PURCHASE AGREEMENT, Page 2
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complete the Agreement as to Inventory Value
attached hereto as Schedule 1.4(a). If the parties are unable to
agree on the Inventory Value by the date of Closing, the
transaction shall nevertheless Close with the Inventory Value at
the midpoint between the Purchaser's valuation and the Seller's
valuation (calculated by adding the Purchaser's valuation and the
Seller's valuation together and dividing the result by 2), not to
exceed $250,000, and the amount of the Inventory Value shall be
submitted to arbitration under Section 11.14.
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Payment . At the Closing, the Purchaser
shall pay, execute, and deliver each of the following to the Seller
and Forsbergs:
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(i) cash payment of One Million
Five Hundred Thousand Dollars ($1,500,000) in immediately available
funds to the Seller's bank account, as previously instructed to the
Purchaser by the Seller in writing;
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(ii) the Purchaser's Promissory Note #1,
attached hereto as Exhibit "A", in the principal amount of Five
Hundred Thousand Dollars ($500,000), plus or minus the adjustment
to Inventory Value as stated in Section 1.4(a).
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(iii) the Purchaser's Promissory Note #2,
attached hereto as Exhibit "B" in the principal amount of Five
Hundred Thousand Dollars ($500,000);
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(iv) subordinated Deed of Trust attached
hereto as Exhibit "C"; and
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(v) subordinated Security Agreement attached
hereto as Exhibit "0".
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(vi) Guaranty of Greg Stewart, in the form
attached hereto as Schedule 3.7.
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Purchaser has already made, and Forsbergs
acknowledge receipt of, payments in a total amount of Two Hundred
Thousand Dollars ($200,000).
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1.5.
Allocation of Purchase Price . The Purchase Price shall be
allocated among the Transferred Assets in the manner set forth in
Exhibit "E". Neither the Purchaser nor the Seller and Forsbergs
shall, in connection with any tax return, any refund claim, any
litigation or investigation or otherwise, take any position with
respect to the allocation of the Purchase Price which is
inconsistent with the manner of allocation provided in such
schedule.
ASSET PURCHASE AGREEMENT, Page 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND FORSBERGS
Except as otherwise set forth in the schedules
attached to this Agreement by reference to specific sections of
this Agreement (hereinafter collectively referred to as the
"Disclosure Schedule"), the Seller and Forsbergs represent and
warrant to the Purchaser as set forth below:
2.1.
Organization and Good Standing . The Seller is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of Idaho and is in good standing in every
jurisdiction in which the conduct of its business requires it to be
so qualified. For purposes of the change of Seller's name to
"Forsberg Investments, Inc." contemplated under this Agreement, as
detailed in Section 5.5(e), Purchaser and Seller acknowledge and
agree that Seller may prior to Closing change its name to Forsberg
Investments, Inc., and shall be the same entity as the Seller.
Accordingly, the term "Seller" as used herein shall, where
applicable, shall also mean "Forsberg Investments, Inc."
2.2.
Authorization, etc . The Seller and Forsbergs have full
corporate power and authority to enter into this Agreement, all
exhibits and schedules hereto, and all agreements contemplated
herein (this Agreement and all such exhibits, schedules, and other
agreements being collectively referred to herein as the
"Acquisition Documents"), to perform its obligations hereunder and
thereunder, to transfer the Transferred Assets, and to carry out
the transactions contemplated hereby and thereby. The Board of
Directors of the Seller has taken, or will take before the Closing
Date, all actions required by law, its Articles of Incorporation,
its By-Laws or otherwise to authorize (i) the execution and
delivery of this Agreement and the other Acquisition Documents, and
(ii) the performance of their obligations hereunder and
thereunder.
This Agreement
has been duly executed and delivered by the Seller and Forsbergs,
and this Agreement is and such other Acquisition Documents will be,
upon due execution and delivery thereof, the legal, valid, and
binding obligations of the Seller and Forsbergs enforceable
according to their terms, except (a) as such enforcement may be
limited by bankruptcy. insolvency, reorganization, moratorium
general principle, or similar laws now or hereafter in effect
relating to creditors' rights and (b) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceeding may be brought.
2.3.
Title to Transferred Assets . The Seller and Forsbergs (as
to the real property) own and have good and marketable title to all
Transferred Assets, free and clear of all Liens. There is no
significantly material asset used or required by the Seller
ASSET PURCHASE AGREEMENT, Page 4
in conduct of its business which is not owned.
by the Seller or, as to the real property described in Section 2.5
below, by the Forsbergs.
2.4.
Permitted Liens . The Seller and Forsbergs have good and
marketable title to all of the Transferred Assets, tangible and
intangible, free and clear of all Liens except for (i) Liens set
forth in the Schedule 2.4 hereto, (ii) Liens for current taxes not
yet due and payable, and (iii) except as disclosed on Schedule
2.5(c) hereto, such other minor imperfections of title and
encumbrances, if any, that do not, in the aggregate, have a
significantly material adverse effect on the business, assets, or
financial condition of the Seller (collectively hereinafter
referred to as the "Permitted Liens").
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The real property ("Real Property") on which
the Seller operates, is owned by the Forsbergs and consists of
approximately 9.0 acres located adjacent to 1-90 on Silver Valley
Road (a.k.a. Highway 10), Kellogg, Shoshone County, Idaho. The
Forsbergs have good and marketable title to the Real Property owned
by them free and clear of any Liens except for Permitted Liens.
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The Real Property includes all/and, bUildings,
structures, and other improvements used by the Seller or necessary
to enable the Seller to conduct its business as it is presently
being conducted. Seller does not lease any real property other than
the Real Property.
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To the best of the Forsbergs' present
knowledge, and except as disclosed on Schedule 2.5(c) hereto, there
is no condition of the Real Property, that would be revealed by an
accurate surveyor physical inspection thereof, which would
intertere in any respect with the use or occupancy thereof as
currently used and occupied. At Closing, title to the Real Property
shall be conveyed by Warranty Deed free of all encumbrances except
Permitted Liens. Forsbergs shall supply a standard form of title
insurance with First American Title Company, Inc., with insuring
title in the Purchaser, with such restrictions of record as may be
reflected in the commitment for such insurance, attached as Exhibit
"F".
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To the best of the Forsbergs' present
knowledge, a portion of the Real Property may be located in a
special flood hazard area designated by any state or federal
governmental authority.
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The legal description of the Real Property is
as follows:
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A parcel of land situated in the Northeast
Quarter of the Southwest Quarter and Northwest Quarter of the
Southwest Quarter of Section
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ASSET PURCHASE AGREEMENT, Page 5
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5, Township 48 North, Range 3 East B.M.,
Shoshone County, Idaho and being more particularly described as
follows:
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Beginning at a point where the North-South
centerline of said Section 5 intersects the Northerly right-of-way
line of the I-90 frontage road, whence the South Quarter Corner of
said Section 5 bears South 00°51'54" West, 1,486.88 feet
distant (shown of record to be South 00°42' East, 1,485.00
feet);
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Thence South 8r05'43" West, 191.87 feet along
said Northerly right-of-way line;
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Thence North 74°08'05" West, 369.76 feet
along said Northerly right-of- way to a point on the Westerly
boundary of a tract described in Deeds Book 77, page 66;
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Thence North 12°34'20" East, 928.58 feet
along said Westerly boundary to a point on the East-West centerline
of said Section 5;
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Thence North 88°41'55" East, 360.46 feet
along said East-West centerline to the Center Quarter of said
Section 5;
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Thence North 88°41'55" East, 63.40 feet
along said centerline; Thence South 00°00'04" West, 1,010.12
feet to a point on the Northerly right-of-way of said 1-90 frontage
road;
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Thence North 87°56'36" West, 78.61 feet
along said right-of-way to the point of beginning.
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Purchaser and Forsbergs hereby acknowledge the
existence of that certain lease entered into by Forsbergs with
Young Electric Sign Company on January 27, 1998, as further
detailed in item number 16 under "PART I " of "SCHEDULE B-SECTION
II EXCEPTIONS" of that certain Title Commitment issued by First
American Title Company, attached hereto as Exhibit "F". Purchaser
acknowledges that it has read said lease and is familiar with its
terms. Purchaser and Forsbergs agree that said lease shall be
assigned to Purchaser, by execution of an Assignment of Lease,
attached hereto as Schedule 2.5(1), and that Purchaser shall become
the Lessor thereon, and shall have all rights and obligations of
the Lessor thereunder.
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2.6. No
Violation . None of (I) the execution and delivery of this
Agreement or any of the other Acquisition Documents by the Seller
and the Forsbergs, (ii) the
ASSET PURCHASE AGREEMENT, Page 6
performance by the Seller and the Forsbergs of
its obligations hereunder or thereunder, or (iii) the consummation
of the transactions contemplated hereby or thereby after the
Closing, will (A) violate any provision of the Articles of
Incorporation or By-Laws of the Seller; (B) violate or constitute a
default under or breach of, or permit the termination of, or cause
the acceleration of the maturity of, any indenture, mortgage,
contract, debt or contractual obligation of the Seller, which
violation, default, breach, termination, or acceleration, either
individually or in the aggregate with all other such violations,
defaults, breaches, terminations, and accelerations, would have a
significant material adverse effect on the Transferred Assets,
including goodwill; (C) require the consent of any other party to
or result in the creation or imposition of any Lien upon any
property or assets of the Seller or the Transferred Assets under
any indenture, mortgage, contract, debt or obligation of or to
which the Seller is a party or by which the Seller is bound; (D)
violate any statute, law, judgment, decree, order, regulation, or
rule of any court or governmental authority to which the Seller or
the Transferred Assets is subject; or (E) result in the loss of any
material license or certificate benefiting the Seller.
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Delivery . The Seller has delivered to
the Purchaser true and complete copies of its tax returns, as of
and for the years ended 2004, 2005, 2006, and 2007, as well as its
unaudited financial statements, including balance sheet and
statement of operations for the twelve-month period ending December
31, 2008 (hereinafter referred to as the Seller's
"Financials").
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Accuracy . To the best of Seller's
present knowledge and without further investigation, the Financials
are true and correct and fairly present the financial condition of
the Seller as of the respective dates thereof and the results of
operations of the Seller for the periods then ended.
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2.8.
Absence of Certain Changes . Since April 11, 2007, the date
of the original Stock Purchase and Sale Agreement, the Seller has
not: (i) suffered any significantly material adverse change in its
assets (including goodwill); (ii) suffered any damage, destruction,
or loss, whether covered by insurance or not, materially adversely
affecting its assets (including goodwill); (iii) permitted or
allowed any of its property or assets (real, personal, or mixed,
tangible or intangible) to be subjected to any mortgage or, pledge
(individually and collectively hereinafter referred to as a
"Lien"), except Permitted Liens; (iv) created or incurred any
liability (fixed, absolute, accrued, contingent, or otherwise)
except for unsecured current liabilities entered into in the
ordinary course of business; (v) made any disposition of assets
except in the ordinary course of business, consistent with past
practice; or (vi) paid or agreed to pay any payment or compensation
to any employee outside the ordinary course of business.
2.9. Trade
Names . The Seller owns, is licensed, or to the best of its
present knowledge and without investigation, otherwise has the full
right to use all trade names,
ASSET PURCHASE AGREEMENT, Page 7
used in the business of the Seller as
currently conducted and as listed on Schedule 2.9. Upon Closing,
Seller agrees to execute an Assignment of Trade Names,
substantially in the form of Schedule 2.9 hereto, which contains a
list of all trade names used by the Seller.
2.10.
Litigation . To the best of Seller's present knowledge and
without investigation, there are no actions, claims, proceedings,
and investigations ("Actions"), including without limitation
Actions for personal injuries, products liability, or breach of
warranty arising from products sold by the Seller, pending or
threatened against the Seller, or the Transferred Assets, before
any court, arbitrator, or administrative or governmental body. The
Seller is not subject to any judgment, order, or decree entered in
any lawsuit or proceeding that has materially adversely affected,
or that can reasonably be expected to materially adversely affect,
the transactions contemplated by this Agreement, the Seller, or the
Transferred Assets, including, without limitation, the Seller's
business practices and its ability to acquire any property or
conduct business in anyway.
2.11. Tax
Returns and Payments . All of the tax returns and reports of
the Seller required by law to be filed on or before the date hereof
have been duly and timely filed and all taxes shown as due thereon
have been paid. There are in effect no waivers of any applicable
statute of limitations related to such returns. To the best of
Seller's present knowledge and without investigation, no liability
for any tax will be imposed upon the Transferred Assets or the
Transferred Assets with respect to any period before the Closing
Date. The provisions of this Section 2.11 shall include, without
limiting the generality of this Section, all reports,
returns, and payments due under all federal, state, or local laws
or regulations relating to income, sales, use and withholding
taxes, withholding Obligations, unemployment insurance, Social
Security, workers' compensation and other obligations of the same
or of a similar nature. The Seller is not subject to any open audit
in respect of its taxes and no deficiency assessment or proposed
adjustment for taxes is pending.
2.12.
Insurance . Schedule 2.12 contains a
complete list of all material policies of fire, liability, workers'
compensation and other forms of insurance owned or held by or for
the benefit of the Seller (collectively, the "Insurance Policies").
The Seller has delivered to the Purchaser true and complete copies
of the Insurance Policies, along with copies of all past Insurance
Policies reasonably available after due and diligent search. To the
best of Seller's present knowledge and without investigation, the
Seller's tangible real and personal property and assets, whether
owned or leased, are insured by reputable insurance companies
licensed to do business in the state in which such property is
located in such amounts customarily carried by comparable
businesses, except to the extent that any failures to insure would
not, in the event of a loss, have a material adverse effect upon
the business of Seller. All such Insurance Policies are and will
remain in full force and effect through the Closing Date and, to
the best of Seller's
ASSET PURCHASE AGREEMENT, Page 8
present knowledge and without investigation,
there is no notice of or basis for any modification, suspension,
termination, or cancellation of any Insurance Policy.
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Contracts and Commitments .
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Schedule 2.13 hereto contains a complete list
of each written contract of the Seller that is material to the
Seller, including but not limited to the following: (i) all
employment contracts between the Seller and its employees, other
than those terminable by the Seller at will and without payment or
penalty; (ii) all collective bargaining agreements and union
contracts to which the Seller is a party; (iii) all written
contracts with distributors, brokers, manufacturer's
representatives, sales representatives, service or warranty
representatives, customers, and other persons, firms, or
corporations engaged in the sale or distribution of the Seller's
products; (iv) all presently open purchase orders issued by the
Seller in excess of $5,000, all sales orders received by the Seller
in excess of $5,000 that have not yet been completed, and all
purchase or sales orders that call for delivery or performance on a
date more than one year from the date of this Agreement; (v) all
written contracts between the Seller or any person or entity that
controls, is controlled by, or is under common control with, the
Seller or any family member of any such person (such entity or
person, being hereinafter referred to as an "Affiliate"); (vi) all
written contracts under which the Seller is either a bailor or
bailee including without limitation written contracts for the
bailment of vehicles; (Vii) all agreements pursuant to which the
Seller acquired the Trade Name or a substantial portion of its
assets; and (viii) all other written executory contracts of the
Seller reflecting obligations for borrowed money or for other
indebtedness or guaranties thereof.
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To the best of Seller's present knowledge and
without investigation, the Seller is not a party to any written
contract that would restrict it from engaging in any business.
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To the best of Seller's present knowledge and
without investigation, each of the contracts listed on Schedule
2.13 is valid and binding, and each has been entered into in the
ordinary course of business. To the best of Seller's present
knowledge and without investigation, the Seller is not in default
of the contracts described in this Section 2.13.
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2.14.
Distributors and Customers . To the best of Seller's present
knowledge and without investigation, it enjoys good working
relationships under all of its distributor, sales representative,
and similar contracts necessary to the normal operation of its
business. Except for ARM AeroSpace, with whom Seller terminated
work in April, 2008, the Seller has no knowledge or basis for
knowledge that any customer or group of related customers (i.e.,
any customers who are directly or indirectly through one or more
intermediaries under common control), who, for the fiscal year
ended 2008 accounted
ASSET PURCHASE AGREEMENT, Page 9
for more than $5,000 in aggregate volume of
gross sales of the Seller, has terminated or expects to terminate a
material portion of its normal business with the Seller. Seller's
working relationships with all of its distributors, sales
representatives, and customers are to a large extent personal to
Seller or the Forsbergs, and no guarantees can be made by Seller or
Forsbergs that Purchaser will enjoy the same relations.
2.15.
Labor Relations . No employee of the Seller is represented
by a labor union, and no petition has been filed or proceedings
instituted by any employee or group of employees with any labor
relations board seeking recognition of a bargaining representative.
There are no matters pending before the National Labor Relations
Board or any similar state or local labor agency, and the Seller is
neither engaged in nor subject to any penalties or enforcement
action in respect of any unfair labor practices, and the Seller
believes that it enjoys good labor relations. There are no
controversies or disputes pending between the Seller and any of its
employees, except for such controversies and disputes as do not and
will not, individually or in the aggregate, have a material adverse
effect on the Transferred Assets.
2.16.
Environmental Matters .
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For purposes of this Section 2.16, the
property of the Seller and Forsbergs shall mean the Real Property.
Additionally, for purposes of this Section 2.16, "Hazardous
Substance" means (i) a "hazardous substance" as defined in 42 USC
§9601(14), as amended from lime to time, and all rules,
regulations, and orders promulgated thereunder as in effect from
time to time, (ii) "hazardous waste" as defined in 42 USC
§6903(5), as amended from time to time, and all rules,
regulations, and orders promulgated thereunder as in effect from
time to time, (iii) if not included in (i) or (ii) above,
"hazardous waste constituents" as defined in 40 CFR § 260.10,
specifically including Appendix VII and VIII of Subpart D of 40 CFR
§ 261, as amended from time to lime, and all rules,
regulations, and orders promulgated thereunder as in effect from
time to time, and (iv) "source," "special nuclear," or "by-product
material" as defined in 42 USC §3011, et seq., as amended from
time to time, and all rules, regulations, and orders promulgated
thereunder as in effect from time to time. Further, "Requirements
of Law" shall mean all applicable federal, state or local laws,
statutes, ordinances, rules, regulations, or court or
administrative orders or processes, or arbitrator's orders or
processes, including those applicable to the development,
manufacture, or sale of the processes, technology, results, or
products of the Seller applicable to air, soil, water, or noise
pollution, or the production, storage, processing, utilization,
labeling, transportation, disposal, emission, or other disposition
of Hazardous Substances, any of the processes used or followed,
results obtained, or products developed, made, or sold by the
Seller including, without limitation, under CERCLA, the Toxic
Substances Control Act of 1976, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, the Clean Air
Act, as amended, the Federal Water Pollution Control
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ASSET PURCHASE AGREEMENT, Page 10
Act, as amended,
or the Occupational Safety and Health Act of 1970, as amended.
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To the best of Seller's present knowledge and
without investigation, and except as disclosed to the Purchaser,
the Seller and Forsbergs are and have been in compliance with all
Requirements of Law relating to Hazardous Substances and applicable
to the Real Property.
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To the best of Seller's present knowledge and
without investigation, and except as disclosed to the Purchaser, in
the report dated , 2009, from ALLWEST Testing & Engineering,
undertaken as part of a Phase I Environmental Site Assessment (ESA)
required by the Purchaser and its lender for certain financing of
the Purchaser, detailing potential environmental concerns with
regard to the Real Property, no discharge, release, spillage,
uncontrolled loss, seepage, or filtration of any Hazardous
Substance or any fuel, gasoline, or other petroleum product or
by-product has occurred at the Real Property in an amount that
violates any Requirements of Law.
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Except for that reasonably necessary for the
operation of its business and in conformity with
historical practices, the Seller does not treat, generate, process,
or transport any Hazardous Substance, nor has the Seller ever done
so.
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To the best of Seller's present knowledge and
without investigation, the Seller has in a timely manner obtained
all Licenses and filed all reports required to be filed under or
pursuant to any applicable environmental Requirements of Law.
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To the best of Seller's and Forsbergs' present
knowledge and without investigation, and except as noted in the
report dated , 2009, from ALLWEST Testing & Engineering,
undertaken as
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