Purchaser’s Representations. Purchaser hereby represents and warrants to Seller that: 11.1 Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property. 11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement. 11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity). 11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject. 11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement. 11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally. 11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and 11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 4 contracts
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Purchaser’s Representations. 6.1 The Purchaser hereby represents , warrants and warrants convents to Seller and with the Vendor that:
11.1 a. the Purchaser is a corporation duly organized, organized validly existing and in good standing Standing under the laws of its jurisdiction of incorporation and the state laws of its formation, or otherwise will be qualified to conduct business in the state those jurisdictions in which the Property is Assets are located, and ;
b. the Purchaser has all right and requisite power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate purchase and pay for the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of assets on the terms described herein and conditions of to perform its other obligations under this Agreement.
11.3 This Agreement, c. the executions and delivery of this Agreement and each and every agreement or document to be executed and delivered hereunder and the consummation of the transactions contemplated herein will not violate, nor in conflict with, any provision of any agreement or instrument to which the Purchaser is a party or is bound , or any judgment, decree, order, statue, rule or regulation applicable to the Purchaser or the constating document or bylaws of the Purchaser;
d. this Agreement has been duly executed and delivered by the Purchaser and all documents required hereunder to be executed and delivered by the Purchaser in connection with the consummation of shall have been duly executed and delivered and this AgreementAgreement does, are and shall be such documents will, constitute legal, valid and binding obligations of the Purchaser enforceable in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).terms;
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to e. the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made incurred any obligation or liability, contingent or otherwise for brokers’ or finders’ fees in respect of this transaction for which the Vendor shall have any obligation or liability; and
f. the Purchaser is not a general assignment for “non-Canadian person” within the benefit meaning of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generallyInvestment Canada Act.
11.7 g. The Purchaser does hereby acknowledge, represent, warrant and agree is relying upon its own investigation concerning the title to and with Seller thatfitness of the Assets and is not relying upon any representation, warranty or statement of the Vendor except as otherwise expressly provided contained in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.;
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Energy Power Systems LTD), Purchase and Sale Agreement (Energy Power Systems LTD), Purchase and Sale Agreement (Energy Power Systems LTD)
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatSeller, which representations shall survive Closing for a period of two (2) years (other than the representations set forth in Sections 11.1, 11.2, 11.3, 11.4, 11.7 and 11.8 which shall survive indefinitely), the following:
11.1 Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, or otherwise formation and will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ ' rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s 's knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending or, to the actual knowledge of Purchaser, threatened against Purchaser which would impair or otherwise materially adversely affect Purchaser’s 's ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, or suffered the filing of an involuntary petition by Purchaser’s 's creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s 's assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s 's assets; (v) admitted in writing Purchaser’s 's inability to pay Purchaser’s 's debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s 's creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “"AS IS, WHERE IS, AND WITH ALL FAULTS” " whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s 's intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and.
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “"AS IS” " AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller as of the date hereof that:
11.1 (a) Purchaser is an education corporation duly organized, validly existing organized and in good standing under the laws of the state State of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser New York has the legal capacity, right power and authority to enter into and perform its obligations under this Agreement and to consummate on the transaction contemplated Closing Date will have such power. This Agreement has been duly authorized, executed and delivered by this Agreement Purchaser and has taken all necessary action to authorize constitutes the legal, valid, binding and enforceable obligation of Purchaser;
(b) As of the date hereof and as of the Closing Date, the execution, delivery and performance of this Agreement by Purchaser have been duly authorized by all necessary action on the terms part of Purchaser and conditions does not require the consent of this Agreement.
11.3 This Agreementany or authorization of any third party. As of the date hereof, and as of the documents to be executed and delivered by Purchaser in connection with Closing Date, neither the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and entry into nor the performance by Purchaser of this Agreement are not precluded or proscribed by, and by Purchaser will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing lawviolate, statuteconflict with, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach ofunder or constitute a default under, or a material default under any agreement, mortgageindenture, contract, undertaking permit, judgment, decree or other instrument or document order to which Purchaser is a party or by which Purchaser is bound or (ii) require the consent of any governmental agency. The individual executing this Agreement on behalf of Purchaser has the authority to which bind Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under the terms of this Agreement.; and
11.6 (c) Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, violated prior to the best date hereof and shall take any actions that may be required to comply with the terms of Purchaserthe USA Patriot Act of 2001, as amended, any regulations promulgated under the foregoing law, Executive Order No. 13224 on Terrorist Financing, any sanctions program administrated by the U.S. Department of Treasury’s knowledgeOffice of Foreign Asset Control or Financial Crimes Enforcement Network, suffered or any other laws, regulations, executive orders or government programs designed to combat terrorism or money laundering, if applicable, on the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided transactions described in this Agreement: (i) . Purchaser represents and warrants that Purchaser is expressly purchasing not an entity named on the Property (List of Specially Designated Nationals and any part thereof) in its existing condition “AS ISBlocked Persons maintained by the U.S. Department of Treasury, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect last updated prior to the Property and the transaction contemplated by date of this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for . Purchaser’s intended use, representations and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and warranties set forth in this Section 7.04 shall survive for one (1) year following the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTClosing.
Appears in 3 contracts
Sources: Contract of Sale, Contract of Sale, Contract of Sale
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatand in favour of the Vendor that as of the date of this Agreement and as of the Closing Date:
11.1 (a) the Purchaser is a corporation duly organized, validly existing incorporated and in good standing subsisting under the laws of the state its place of its formation, incorporation (and is or otherwise will be qualified to conduct business extra-provincially registered in the state in which the Property is locatedBritish Columbia if necessary), and has all right the necessary corporate authority, power and power capacity to acquire, own the Subject Assets and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and all agreements, transfers, assignments and other documents to consummate be delivered by it pursuant hereto and to complete the transaction contemplated Transaction and perform its obligations under the documents to be entered into by it pursuant hereto in respect of the Transaction on the terms and conditions herein contained;
(b) this Agreement and has taken the obligations of the Purchaser hereunder and each of the agreements, transfers, assignments and other documents entered into by the Purchaser pursuant hereto (including, without limitation, the Closing Documents) and the Transaction contemplated herein will have been duly and validly authorized by all necessary action to authorize requisite corporate proceedings of the Purchaser and constitute (or will constitute on Closing, in the case of the Closing Documents) legal, valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with its and their terms;
(c) neither the entering into nor delivery of this Agreement nor the completion by the Purchaser of the Transaction will conflict with or constitute a default under any Applicable Laws; and no approval or consent of any Governmental Authority is required in connection with the execution and delivery of this Agreement by the Purchaser and the consummation of the Transaction, save and except for the Competition Act Approval and as set out in each of Section 4.1(a), 4.1(b) and 4.1(c) and Section 4.2(b), 4.2(c) and 4.2(d);
(d) the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are by the Purchaser does not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality violation of any of the foregoingprovisions of the constating documents or by-laws of the Purchaser;
(e) in respect of the following matters:
(i) the Purchaser has not offered, promised, given or agreed to give and shall not during the term of this Agreement offer, promise, give or agree to give to any Person any bribe on behalf of the Vendor or otherwise with the object of obtaining a business advantage for the Vendor or otherwise;
(ii) the Purchaser specifically acknowledges that Seller does has not represent or engaged in any way warrant activity or practice which would constitute an offence under the accuracy Foreign Corrupt Practices Act of the United States and the applicable anti-bribery and/or anti-corruption laws of Canada (“The Anti-Corruption Laws”);
(iii) the Purchaser has in place, its own policies and procedures to ensure compliance with the Anti-Corruption Laws;
(iv) the Purchaser has in place, effective accounting procedures and internal controls necessary to record all expenditures in connection with this Agreement, which enable the Vendor and the Purchaser to readily identify the Purchaser’s financial and related records in connection with this Agreement;
(v) from time to time during the term of this Agreement including without limitation, on Closing, at the reasonable request of the Vendor, the Purchaser shall confirm in writing that it has complied with its representations under this Sections 6.2(e)(ii) through 6.2(e)(iv), inclusive and shall provide any marketing information or pamphlets listing or describing reasonably requested by the Property or the information, if any, provided by Seller to PurchaserVendor in support of such compliance; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSESvi) the Purchaser shall notify the Vendor as soon as practicable of any breach of any of the representations contained in this Sections 6.2(e)(ii) through 6.2(e)(iv), WHETHER EXPRESSED OR IMPLIEDinclusive of which it becomes aware.
(f) As of the Closing Date, INCLUDINGthe Purchaser shall not have engaged any asset or property manager in respect of the Subject Assets. This Section 6.2 shall survive the Closing, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYsubject to Section 6.3 and, TAX LIABILITIESif applicable, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTSection 6.5.
Appears in 2 contracts
Sources: Agreement of Purchase and Sale (GTWY Holdings LTD), Agreement of Purchase and Sale (Gateway Casinos & Entertainment LTD)
Purchaser’s Representations. (a) Purchaser hereby represents and warrants to Seller as of the Effective Date and as of Closing that:
11.1 (i) Purchaser is a limited liability company duly organized, validly existing formed and in good standing under the laws of the state Cayman Islands and is not subject to any law, order, decree, restriction or agreement which prohibits or would be violated by this Agreement or the consummation of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Propertytransactions contemplated hereby.
11.2 (ii) Purchaser has the legal capacity, right full power and authority to enter into and perform this Agreement in accordance with its terms and this Agreement and all documents executed by Purchaser which are to consummate the transaction contemplated by this Agreement and has taken all necessary action be delivered to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This AgreementSeller at Closing are, and at the documents to be time of Closing will be, duly authorized, executed and delivered by Purchaser in connection with and are, and at the consummation time of this AgreementClosing will be the legal, are and shall be valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)terms.
11.4 The (iii) Neither the execution, delivery and or performance by Purchaser of this Agreement are not precluded nor the consummation of the transactions contemplated hereby is prohibited, or proscribed byrequires Purchaser to obtain any consent, and will notauthorization, to the best of Purchaser’s knowledgeapproval or registration under, (i) violate any provision of any existing law, statute, rule or rule, regulation, judgment, order, decreewrit, writ injunction or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to decree which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectbinding upon Purchaser.
11.5 (iv) There are no suitsjudgments, orders or decrees of any kind against Purchaser unpaid and unsatisfied of record, nor any actions, arbitrations, or legal, administrative suits or other legal or administrative proceedings pending or, to Purchaser’s Actual Knowledge, threatened against Purchaser Purchaser, which would impair have a material adverse effect on Purchaser, its financial condition or otherwise materially adversely affect Purchaser’s its ability to perform its obligations under consummate the transactions contemplated by this Agreement.
11.6 (v) Purchaser has is not acquiring the Property with the assets of an employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), or, if plan assets will be used to acquire the Property, Purchaser will deliver to Seller at Closing a certificate containing such factual representations as shall permit Seller and its counsel to conclude that no prohibited transaction would result from the consummation of the transactions contemplated by this Agreement. Purchaser is not a “party in interest” within the meaning of Section 3(3) of ERISA with respect to any beneficial owner of Seller.
(vi) Purchaser is not now nor shall it be at any time prior to or at the Closing an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity (collectively, a “Person”) with whom a United States citizen, entity organized under the laws of the United States or its territories or entity having its principal place of business within the United States or any of its territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) (including those executive orders and lists published by OFAC with respect to Persons that have been designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC “Specially Designated Nationals and Blocked Persons”) or otherwise. Neither Purchaser nor any Person who owns an interest in Purchaser (collectively, a “Purchaser Party”) is now nor shall be at any time prior to or at the Closing a Person with whom a U.S. Person, including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(vii) Neither Purchaser nor any Purchaser Party, nor any Person providing funds to Purchaser: (i) made a general assignment for is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the benefit United States would be predicate crimes to money laundering, or any violation of creditorsany Anti-Money Laundering Laws (as hereinafter defined); (ii) filed has been assessed civil or criminal penalties under any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditorsAnti-Money Laundering Laws; or (iii) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws. For purposes of this Section 15(a), the term “Anti-Money Laundering Laws” shall mean laws, regulations and sanctions, state and federal, criminal and civil, that: (w) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (x) limit commercial transactions with designated countries or individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the best interests of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assetsUnited States; (ivy) to require identification and documentation of the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come dueparties with whom a Financial Institution conducts business; or (viz) made an offer are designed to disrupt the flow of settlementfunds to terrorist organizations. Such laws, extension or composition regulations and sanctions shall be deemed to Purchaser’s creditors generallyinclude the USA PATRIOT Act of 2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq.
11.7 Purchaser does hereby acknowledge, representthe Trading with the Enemy Act, warrant and agree to and with Seller that50 U.S.C. App. Section 1 et. seq., except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS ISInternational Emergency Economic Powers Act, WHERE IS50 U.S.C. Section 1701 et. seq., AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated sanction regulations promulgated pursuant thereto by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser OFAC, as well as laws relating to prevention and detection of all responsibility to inspect money laundering in 18 U.S.C. Sections 1956 and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT1957.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (SouFun Holdings LTD), Purchase and Sale Agreement (SouFun Holdings LTD)
Purchaser’s Representations. 29.1 If Purchaser was a tenant in occupancy of a Unit in the Building on the Filing Date of the Plan, Purchaser hereby represents that this Agreement was executed and warrants delivered by Purchaser pursuant to Seller that:an offering made without a discriminatory repurchase agreement or other discriminatory inducement.
11.1 29.2 If the Unit to which this Agreement relates is not occupied by Purchaser, Purchaser shall duly complete and sign before a notary public the Statement of Purchase set forth as Schedule B hereto and deliver same to the Selling Agent together with this Agreement.
29.3 Purchaser represents that Purchaser has full right and authority to execute this Agreement and perform Purchaser’s obligations hereunder. If Purchaser is duly organizednot a natural person, validly existing Purchaser agrees to deliver at Closing, such documents evidencing Purchaser’s authority as may be required by Purchaser’s title company. Purchaser further represents that the Down Payment represents Purchaser’s own funds and in good standing that no other party (other than Purchaser or Seller, as provided herein) has any right or claim to all or any portion of the Down Payment.
29.4 Purchaser is not now, nor shall it be at any time prior to or at the closing of title, an individual, corporation, partnership, joint venture, trust, trustee, limited liability company, unincorporated organization, real estate investment trust or any other form of entity (collectively, a “Person”) with whom a United States citizen, entity organized under the laws of the state United States or its territories or entity having its principal place of business within the United States or any of its formationterritories (collectively, or otherwise will be qualified to conduct a “U.S. Person”), is prohibited from transacting business in of the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction type contemplated by this Agreement Agreement, whether such prohibition arises under United States law, regulation, executive orders and has taken all necessary action to authorize lists published by the executionOffice of Foreign Assets Control, delivery and performance Department of the terms Treasury (“OFAC”) (including those executive orders and conditions lists published by OFAC with respect to Persons that have been designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC or otherwise). Neither Purchaser nor any Person who owns an interest in Purchaser is now nor shall be at any time prior to or at the closing of title a Person with whom a U.S. Person, including a “financial institution” as defined in 31 U.S.C. 5312 (a)(z), as periodically amended, is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC or otherwise.
29.5 Purchaser has taken, and shall continue to take until the closing of title, such measures as are required by applicable law to assure that the funds used to pay to Seller the Purchase Price are derived: (i) from transactions that do not violate United States law nor, to the extent such funds originate outside the United States, do not violate the laws of the jurisdiction in which they originated; and (ii) from permissible sources under United States law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they originated. Purchaser is, and will at closing be, in compliance with any and all applicable provisions of the USA PATRIOT Act of 2001, Pub. L. No. 107-56, the Bank Secrecy Act of 1970, as amended, 31 U.S.C. Section 5311 et. seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1 et. seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
29.6 The provisions of this Article shall survive the closing of title to the Unit or termination of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Condominium Offering Plan
Purchaser’s Representations. Purchaser hereby represents Purchasers jointly and warrants severally represent to Seller thatSellers that as of the Effective Date:
11.1 Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 (A) Each Purchaser has the legal capacity, right and full authority to enter into this Agreement execute, deliver and to consummate the transaction contemplated by perform this Agreement and has taken obtained all necessary action to authorize the executionconsents of any other party that are required for such purpose, if any. The execution and delivery and performance of the terms and conditions of this Agreement.
11.3 This AgreementAgreement by such Purchaser, and the documents to be executed and delivered by Purchaser in connection with the consummation performance of this AgreementAgreement by such Purchaser, are have been duly authorized by such Purchaser, and shall be valid this Agreement is binding on such Purchaser and binding enforceable against such Purchaser in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)its terms.
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (iB) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 No Purchaser has not (i) made a general assignment for the benefit of creditors; , (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, or suffered the filing of an any involuntary petition by such Purchaser’s creditors; , (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all all, or substantially all all, of such Purchaser’s assets; , (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all all, or substantially all all, of such Purchaser’s assets; , (v) admitted in writing Purchaser’s its inability to pay Purchaser’s its debts as they come due; , or (vi) made an offer of settlement, extension or composition to Purchaser’s its creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (iC) Each Purchaser is expressly purchasing currently in compliance with, and shall at all times during the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms term of this Agreement (including any extension thereof) remain in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations compliance with, the regulations of the Property as Purchaser deems necessary or appropriate with respect to OFAC of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and the suitability Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. The representations and warranties made in this Agreement by Purchasers shall be deemed remade by Purchasers as of the Property for Purchaser’s intended use, date of Closing with the same force and based upon same, effect as if in fact specifically remade at that time. If any Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel becomes aware of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied any facts that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of render any of the foregoingforegoing representations and warranties to be false, Purchaser specifically acknowledges that Seller does not represent Purchasers will give prompt written notice specifying same to Sellers. All representations and warranties made by Purchasers in this Agreement shall survive the Closing for a period of nine (9) months. Purchasers shall jointly and severally indemnify, defend and hold harmless Sellers from and against any and all liabilities, losses, damages, costs, expenses (including without limitation reasonable attorneys’ fees and expenses), causes of action, suits, claims, demands or in any way warrant the accuracy judgments of any marketing information nature howsoever caused should any representation or pamphlets listing warranty set forth herein prove to have been untrue or describing the Property inaccurate when made or the information, if any, provided arising from any breach by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTPurchasers of any representation or warranty set forth herein.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller the Vendor now and at closing that:
11.1 (a) the Purchaser is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.Nevada;
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance (b) as of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation date of this Agreement, the Purchaser's authorized share capital consists of 75,000,000 shares of common stock with a par value of $0.0001 per share;
(c) 1,600,000 common shares are issued and shall outstanding as fully paid and non-assessable shares. No other person has any written or verbal agreement or option, understanding or commitment or any right or privilege capable of becoming an agreement for the purchase of securities in the capital of the Purchaser;
(d) the Vend-In Shares (as defined herein) will, upon issuance, be valid validly issued, non-assessable and binding in accordance with their respective terms free and conditionsclear of all liens, except as such enforceability may be limited charges and encumbrances;
(e) the Articles and Bylaws of the Purchaser permit its to carry on its present and intended businesses, including the business currently conducted by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights the Vendor;
(f) The corporate records and by general principles minute books of equity the Purchaser contain complete and accurate minutes of all meetings of the directors and shareholders of the Purchaser held since incorporation;
(whether applied in a proceeding at law or in equity).g) the Purchaser has no knowledge of any:
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision actions, suits, investigations or proceedings against the Purchaser which are in progress, pending or threatened;
(ii) outstanding judgments of any existing lawkind against the Purchaser; or
(iii) occurrences or events which have, statuteor might reasonably be expected to have, rule a material adverse effect on the Purchaser's intended business.
(h) There are no outstanding orders, judgments, injunctions, awards or order, decree, writ or injunction decrees of any court, arbitrator or governmental departmentor regulatory body involving the Purchaser. No suit, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, action or legal, administrative administrative, arbitration or other proceedings pending against Purchaser which would impair proceeding or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy reasonable basis therefor, or, to the best of the Purchaser’s 's knowledge, suffered the filing of an involuntary petition no investigation by Purchaser’s creditors; (iii) any governmental agency, pertaining to the best Purchaser or its assets is pending or has been threatened against the Purchaser which could adversely affect the financial condition or prospects of the Purchaser or the conduct of the business thereof or any of the Purchaser’s knowledge, suffered 's assets or materially adversely affect the appointment ability of a receiver the Purchaser to take possession of all or substantially all of Purchaser’s assets; (iv) to consummate the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction transactions contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller the Vendor that:
11.1 (a) the Purchaser is a corporation duly organizedincorporated, validly existing organized and in good standing subsisting under the laws of Italy;
(b) the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and Purchaser has all right necessary corporate power, authority and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority capacity to enter into this Agreement and to consummate perform its obligations and the transaction contemplated by execution and delivery of this Agreement and has taken the consummation of the transactions contemplated have been duly authorized by all necessary corporate action on the part of the Purchaser;
(c) the Purchaser is not a party to, bound or affected by or subject to authorize any indenture, agreement, instrument, charter or by-law provision, order, judgment or decree which would be violated, contravened or breached by the execution, execution and delivery and by it of this Agreement or the performance by it of any of the terms contained herein;
(d) there is no suit, action, litigation, arbitration proceeding or governmental proceeding, including appeals and conditions of this Agreement.
11.3 This Agreementapplications for review, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreementprogress, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will notpending or, to the best of the Purchaser’s 's knowledge, (i) violate threatened against or relating to the Purchaser or any provision of any existing lawjudgment, statutedecree, injunction, rule or order, decree, writ or injunction order of any court, governmental department, commission, boardagency, bureauinstrumentality or arbitrator which, agency or instrumentalityin any case, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially might adversely affect Purchaser’s the ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement or to consummate the transactions contemplated and thereafter to purchase the Property or for any other purpose. Without limiting the generality Purchaser is not aware of any existing ground on which any action, suit or proceeding may be commenced with any reasonable likelihood of success;
(e) this Agreement and all other documents contemplated hereunder to which the Purchaser is or will be a party have been or will be, as at the Time of Closing, duly and validly executed and delivered by the Purchaser and constitutes or will, as at the Time of Closing, constitute legal, valid and binding obligations of the foregoing, Purchaser specifically acknowledges that Seller does not represent enforceable in accordance with the terms hereof or thereof;
(f) the Purchaser is a “WTO Investor” as defined in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to PurchaserInvestment Canada Act; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTg) the Purchaser is a non-resident of Canada and not registered for the GST under Part IX of the ETA.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fuel Systems Solutions, Inc.)
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows:
11.1 (a) Purchaser is a limited partnership duly organized, organized and validly existing and in good standing under the laws of the state State of its formationDelaware, and is or otherwise will be qualified under the laws of the State of New Jersey or Commonwealth of Pennsylvania, as required for the particular parcel, to conduct business therein on the Closing Date;
(b) The execution and delivery of this Agreement and the performance by Purchaser of its obligations hereunder have been duly authorized by all requisite company action and will not conflict with or result in a breach of any of the state terms, conditions or provisions of the organizational documents of Purchaser, and will not conflict with or result in a breach of any law, regulation or order; or any agreement or instrument to which Purchaser is a party, by which Purchaser is bound or the Property is located, subject; and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of pursuant to this Agreement, are and shall be will each constitute the legal, valid and binding obligations of Purchaser, enforceable in accordance with their respective terms terms, covenants and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights . Purchaser has the financial ability to execute and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of deliver this Agreement are not precluded and all documents now or proscribed byhereafter to be executed by it pursuant to this Agreement (collectively, "Purchaser's Documents"), to consummate the transactions contemplated hereby, and to perform its obligations hereunder and under Purchaser's Documents;
(c) This Agreement and Purchaser's Documents do not and will not, to the best of Purchaser’s knowledge, (i) violate not contravene any provision of the partnership agreement or certificate of formation of Purchaser, any existing lawjudgment, statute, rule or order, decree, writ or injunction issued against Purchaser, or any provision of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) laws applicable to Purchaser. The consummation of the transactions contemplated hereby will not result in a material breach of, or constitute a material default or event of default by Purchaser under any agreementagreement to which Purchaser or any of its assets are subject or bound and will not result in a violation of any laws applicable to Purchaser; and
(d) There are no pending actions, mortgagesuits, contract, undertaking proceedings or other instrument or document investigations to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative before any court or other proceedings pending against Purchaser governmental authority which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the informationcould, if anyadversely determined, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENThave a material adverse impact on the transactions contemplated hereby.
Appears in 1 contract
Purchaser’s Representations. Purchaser PURCHASER hereby represents and warrants to Seller thatthe best of its knowledge that all of the following are true and correct as of Closing:
11.1 Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and 6.1 PURCHASER has all right and full power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate assume and perform all of its obligations hereunder.
6.2 The execution and delivery of this Agreement and the performance by PURCHASER of the obligations hereunder have been duly authorized by the PURCHASER as may be required, and no further action or approval is required in order to constitute this Agreement as a binding obligation of the PURCHASER.
6.3 The execution and delivery of this Agreement and the consummation of the transaction contemplated by this Agreement hereunder on the part of the PURCHASER do not and has taken all necessary action to authorize will not violate the executionorganizational documents of PURCHASER and do not and will not conflict with or result in the breach of any condition or provision, delivery and performance or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the terms and conditions of this Agreementany contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which PURCHASER is a party.
11.3 This Agreement6.4 All of the representations, warranties and the documents to be executed and delivered by Purchaser covenants of PURCHASER contained in connection with the consummation of this Agreement, are and Agreement shall be true and correct in all material respects and not in default at the time of Closing, just as though they were made on the Closing Date.
6.5 No action by any federal, state, municipal or other governmental department, board, bureau or instrumentality is necessary to make this Agreement a valid and instrument binding upon PURCHASER in accordance with their respective its terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution6.6 PURCHASER shall indemnify, delivery hold harmless and performance by Purchaser defend SELLER against all claims, demands, losses, liabilities, costs and expenses, including attorney’s fees, imposed upon or accruing against SELLER as a result of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided representations contained in this Agreement: (i) Purchaser is expressly purchasing the Property (Section 6 not being true and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all material respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser’s Representations. 9.1 In addition to all other representations and/or warranties made by Purchaser hereby elsewhere in this Agreement, the Purchaser represents and warrants to Seller thatas follows:
11.1 9.1.1 Purchaser is is, and on the Closing Date shall be, duly organizedformed, validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 . Purchaser has the legal capacity, right power and authority to enter into this Agreement, to perform its obligations under this Agreement and to complete the transaction contemplated by this Agreement. This Agreement and the transaction contemplated hereunder have been, and will be on the Closing Date, duly authorized and approved by all necessary action by Purchaser in accordance with its organizational documents and
9.1.2 This Agreement has been duly executed and delivered by Purchaser and constitutes a valid, binding and enforceable obligation of Purchaser in accordance with its terms, subject to bankruptcy and other debtor relief laws. The person(s) executing this Agreement have been duly authorized and empowered to so execute this Agreement and all documents necessary and appropriate to consummate the transaction contemplated thereunder.
9.1.3 Purchaser is not required to obtain any consent, approval or authorization from, or to make any filing with, any person (including any governmental authority) in connection with or as a condition to, the execution and delivery of this Agreement, the performance of this Agreement by Purchaser of its obligations under this Agreement or the transaction contemplated by this Agreement.
9.1.4 To the best of Purchaser’s knowledge, the execution and delivery of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms obligations set forth in this Agreement: (i) shall not be a breach or violation of any agreement to which Purchaser is a party, and conditions Purchaser has obtained the necessary approvals for the execution and performance of same; and (ii) do not conflict with any agreement, indenture or other instrument, order, judgment, injunction, award or decree of any governmental body, administrative agency, court, law, rule or regulation affecting Purchaser or by which Purchaser or any of its assets or properties is or are bound.
9.1.5 The Purchaser has not been served with notice of, and there are no actions, suits, arbitrations or legal or administrative proceedings pending or threatened in any court, tribunal, agency or other forum against or that will affect the Purchaser’s ability to consummate the transactions contemplated by this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by 9.1.6 No bankruptcy, insolvency, reorganizationrearrangement or similar action or proceedings, moratorium whether voluntary or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law involuntary, is or in equity).
11.4 The executionare pending or threatened against the Purchaser, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate against any provision of any existing lawpartner, statutemember, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking affiliate or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suitsrelated entity, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 and the Purchaser has not (i) made a general assignment for the benefit no intention of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct commencing any such facts, circumstances, conditions action or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTproceeding.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser’s Representations. 4.1 The Purchaser hereby represents and warrants to the Seller on the date hereof and on each day up to and including the Completion Date that:
11.1 Purchaser (a) it is duly organized, incorporated and validly existing and in good standing under the laws of the state of Israel, with power and authority to carry on its formation, or otherwise will be qualified to conduct business in as now being conducted;
(b) the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal requisite capacity, right power and authority to enter into and to perform this Agreement. All corporate action on the part of the Purchaser necessary for the authorisation and execution of this Agreement, the authorisation, purchase of the Sale Shares and the performance of all of such Purchaser’s obligations hereunder have been taken; and
(c) this Agreement and all other documents to consummate the transaction contemplated by be entered into in connection with this Agreement will, when executed, constitute binding obligations on the Purchaser in accordance with its terms;
4.2 The signature of and has taken all necessary action the compliance with the terms of this Agreement does not and will not conflict with or constitute a default under any provision of:
(a) the constitutional and corporate documents of the Purchaser;
(b) any law, rule or regulation of any government applicable to authorize the executionPurchaser;
(c) any contract, delivery agreement, indenture, mortgage, instrument, lease, license, arrangement, or undertaking of any nature, written or oral, of the Purchaser; or
(d) any lien, order, judgement, decree or regulation or any other restriction of any kind by which the Purchaser is bound.
4.3 Except as set forth in Section 1.3 above, no consents, approvals, registrations, authorisations or permits or waivers from governmental or non-governmental administrative agencies or from any other person or entity, in each case, required by law, contract, or regulation nor otherwise are required to be obtained by the Purchaser in connection with the execution and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which 4.4 Purchaser is acquiring the Sale Shares for its own account for investment purposes only and not with a party view to or by which for distributing or reselling such Sale Shares or any part thereof or interest therein. The Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations experienced in understanding and evaluating the risks of investments such as the one contemplated under this Agreement. The Purchaser acknowledges that the Sale Shares are being offered and sold to it in a private placement without a prospectus and that the ability to sell the Sale Shares may be restricted by applicable securities laws.
11.6 4.5 The Purchaser has not (i) made a general assignment for acknowledges and understands that the benefit Sale Shares are restricted shares under the provisions of creditors; (ii) filed any voluntary petition in bankruptcy or, the Relationship Agreement and the License and that the ability to sell the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Sale Shares is limited accordingly. The Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY Sale Shares “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTwithout reliance on any representation of the Seller other than the Seller’s representations expressly set forth in Section 3 hereof.
Appears in 1 contract
Sources: Share Purchase Agreement (Elron Electronic Industries LTD /Ny/)
Purchaser’s Representations. Purchaser hereby represents makes the following representations to Seller, each of which shall be true on the Effective Date hereof and warrants to Seller that:
11.1 Purchaser is duly organized, validly existing and in good standing under on the laws date of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the PropertyClosing.
11.2 (a) Purchaser has the legal capacity, right full power and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of carry out the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation provisions of this Agreement, and to execute and deliver all documents which are contemplated by this Agreement, and shall be valid all actions of Purchaser necessary to confer such authority upon the persons executing this Purchase Agreement and binding in accordance with their respective terms and conditionssuch other documents have been, except as such enforceability may be limited by bankruptcyor will be, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)taken.
11.4 The execution(b) As of the Effective Date and as of the date of Closing, delivery and performance by neither Purchaser of this Agreement are not precluded or proscribed by, and will notnor, to the best of Purchaser’s knowledge, any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representative or agents, is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (iincluding those named on OFAC’s Specially Designated and Blocked Persons List) violate or under any provision of any existing law, statute, rule executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (iiSupport Terrorism) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectgovernmental action (“OFAC”).
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against (c) Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability represents that it has sufficient funds to perform its obligations under close this Agreementtransaction.
11.6 (d) Purchaser has not (i) made further represents that the Property will be developed as with a general assignment for minimum 6,000 square foot light industrial building with shop and office space. Any deviation from this intended use must be authorized by the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted Seller in writing Purchaseror be subject to Seller’s inability Right to pay Purchaser’s debts Repurchase as they come due; set forth in Section 11.13 below. This Agreement does not alleviate the Purchaser from obtaining the necessary approvals, authorizations or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser permits required for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability development of the Property for Purchaser’s intended said use, nor shall this Agreement be construed as granting such approval.
(e) Purchaser acknowledges that pole buildings are prohibited in the Horn Rapids Commercial Plaza and based upon same, agrees that Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for not build pole buildings on the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser’s Representations. The Purchaser hereby covenants with and represents and warrants to Seller the Vendor realizing that the Vendor is relying upon such covenants, representations and warranties, that:
11.1 (a) The Purchaser is duly organized, incorporated and validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, Panama and has all right good right, full power and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and absolute authority to enter into purchase the Assets from the Vendor according to the true intent and meaning of this Agreement;
(b) The execution, delivery of, performance of and compliance with the terms of this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents any agreements to be executed and delivered pursuant hereto by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed byPurchaser, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) not result in a material any breach of, or constitute a material default under and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under any agreementterm or provision of the articles, by-laws or resolutions of shareholders or directors of the Purchaser or any indenture, mortgage, note, contract, undertaking agreement (written or oral), instrument, lease or other instrument or document to which the Purchaser is a party or by which Purchaser it is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrationsbound, or any judgment, decree, order, statute, rule or regulation applicable to the Purchaser;
(c) This Agreement has been duly authorized, executed and delivered by the Purchaser and all other documents executed and delivered by Purchaser pursuant hereto shall be duly authorized, executed and delivered by the Purchaser and will constitute legal, administrative or other proceedings pending against valid and binding obligations of the Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability enforceable in accordance with their respective terms, subject to perform its obligations under this Agreement.
11.6 Purchaser has not the qualification that such enforceability may be subject to (i) made a general assignment for the benefit of creditorsbankruptcy, insolvency, fraudulent preference, reorganization or other laws relating to or affecting creditors rights generally; and (ii) filed any voluntary petition general principles of equity (regardless of whether such enforceability is considered in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; a proceeding at equity or in law);
(iiid) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 The Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing currently has sufficient immediately available funds in cash or cash equivalents and will at the Property (and any part thereof) Closing have sufficient immediately available funds, in its existing condition “AS IScash, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect forsufficient binding commitment letters from financing sources, repair or true and correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has copies of which have been provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property Vendor prior to the date of this Agreement, to pay the portion of the Purchase Price payable at Closing and to pay any other amounts payable under this Agreement and to effect the transaction transactions contemplated by this Agreement; , all without any third-party consent or approval required;
(ive) Seller The Purchaser has specifically bargained not incurred any liability, contingent or otherwise, for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms broker's, agent's or finder's fees in respect of this Agreement in consideration thereof; (v) Purchaser has undertaken for which the Vendor shall have any obligation or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTliability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parker Drilling Co /De/)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatthe Company as follows:
11.1 (a) The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the state jurisdiction of its formationorganization with full right, corporate or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and partnership power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction transactions contemplated by this hereby and otherwise to carry out its obligations hereunder.
(b) The execution and delivery of the Agreement and has taken performance by the Purchaser of the transactions contemplated by the Agreement have been duly authorized by all necessary action to authorize corporate, partnership, limited liability company or similar action, as applicable, on the execution, delivery and performance part of the terms and conditions of this AgreementPurchaser.
11.3 This Agreement(c) The Agreement has been duly executed by the Purchaser, and the documents to be executed and when delivered by the Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective the terms hereof, will constitute the valid and conditionslegally binding obligation of the Purchaser, except enforceable against it in accordance with its terms, except: (i) as such enforceability may be limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium or and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by general principles of equity (whether applied in a proceeding at law or in equity)applicable law.
11.4 (d) The execution, delivery and performance by the Purchaser of this the Agreement are and the consummation by it of the transactions contemplated thereby do not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, not (i) conflict with or violate any provision of any existing lawthe Purchaser’s certificate or articles of incorporation, statute, rule bylaws or order, decree, writ other organizational or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalitycharter documents, or (ii) conflict with or result in a material breach ofviolation of any law, or a material default under any agreementrule, mortgageregulation, contractorder, undertaking judgment, injunction, decree or other instrument restriction of any court or document governmental authority to which the Purchaser is a party subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or to which Purchaser is subject.
11.5 There are no suitsaffected, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for except in the benefit of creditors; case subparagraph (ii) filed any voluntary petition in bankruptcy or, such as could not have or reasonably be expected to have a material adverse effect on the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (ie) The Purchaser is expressly purchasing acquiring the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property Note and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the informationWarrants, if any, provided by Seller as well as the Shares underlying the Note and the Warrants, if any (collectively referred to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSESwith the Note and Warrants as the “Securities”), WHETHER EXPRESSED OR IMPLIEDfor the Purchaser’s own account and not as a nominee or agent for any other person, INCLUDINGand not with the view to, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYor for sale in connection with, TAX LIABILITIESany distribution thereof.
(f) The Purchaser is an “accredited investor,” as the Purchaser is a person or entity described in one of the items in Annex A attached hereto.
(g) The Purchaser is not purchasing the Securities as a result of any advertisement, ZONINGarticle, PROPERTY VALUEnotice or other communication regarding the Securities published in any newspaper, AVAILABILITY OF ACCESS OR UTILITIESmagazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
(h) The Purchaser understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of federal and state securities laws and that the Company is relying upon the truth and accuracy of, INGRESS OR EGRESSand the Purchaser’s compliance with, GOVERNMENTAL APPROVALSthe representations, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY warranties, agreements, acknowledgements and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Securities.
(i) The offer and sale of the Securities has not been registered under the Securities Act of 1933, as amended (the “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENTSecurities Act”), PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTYand that, AND THATaccordingly, IN FACTthey will not be transferable except as permitted under various exemptions set forth in the Securities Act, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTor upon satisfaction of the registration and prospectus delivery requirements of the Securities Act, and that there will be a legend printed upon the Securities so indicating.
(j) The Securities may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of unless the Purchaser first provides to the Company and opinion of counsel to the effect that such sale, transfer, assignment, pledge, hypothecation or other disposition will be exempt from the registration and prospectus delivery requirements of the Securities Act and the registration or qualification requirements of any applicable state securities’ law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cortex Pharmaceuticals Inc/De/)
Purchaser’s Representations. The Purchaser hereby covenants with and represents and warrants to Seller the Vendors realizing that the Vendors are relying upon such covenants, representations and warranties, that:
11.1 (a) The Purchaser is duly organized, incorporated and validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, Peru and has all right good right, full power and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and absolute authority to enter into purchase the Assets from the Vendors according to the true intent and meaning of this Agreement;
(b) The execution, delivery of, performance of and compliance with the terms of this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents any agreements to be executed and delivered pursuant hereto by the Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are will not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material any breach of, or constitute a material default under and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under any agreementterm or provision of the articles, by-laws or resolutions of shareholders or directors of the Purchaser or any indenture, mortgage, note, contract, undertaking agreement (written or oral), instrument, lease or other instrument or document to which the Purchaser is a party or by which Purchaser it is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrationsbound, or any judgment, decree, order, statute, rule or regulation applicable to the Purchaser;
(c) This Agreement has been duly authorized, executed and delivered by the Purchaser and all other documents executed and delivered by the Purchaser pursuant hereto shall be duly authorized, executed and delivered by the Purchaser and will constitute legal, administrative or other proceedings pending against valid and binding obligations of the Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability enforceable in accordance with their respective terms, subject to perform its obligations under this Agreement.
11.6 Purchaser has not the qualification that such enforceability may be subject to (i) made a general assignment for the benefit of creditorsbankruptcy, insolvency, fraudulent preference, reorganization or other laws relating to or affecting creditors rights generally; and (ii) filed any voluntary petition general principles of equity (regardless of whether such enforceability is considered in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; a proceeding at equity or in law);
(iiid) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 The Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing currently has sufficient immediately available funds in cash or cash equivalents and will at the Property (and any part thereof) Closing have sufficient immediately available funds, in its existing condition “AS IScash, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect forsufficient binding commitment letters from financing sources, repair or true and correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has copies of which have been provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property Vendors prior to the date of this Agreement, to pay the portion of the Purchase Price payable at Closing and to pay any other amounts payable under this Agreement and to effect the transaction transactions contemplated by this Agreement; , all without any third-party consent or approval required;
(ive) Seller The Purchaser has specifically bargained not incurred any liability, contingent or otherwise, for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms broker's, agent's or finder's fees in respect of this Agreement in consideration thereof; (v) Purchaser has undertaken for which the Vendors shall have any obligation or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTliability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parker Drilling Co /De/)
Purchaser’s Representations. The Purchaser hereby represents and warrants to and in favor of the Seller that:
11.1 (a) the Purchaser is duly organized, validly existing and in good standing a limited liability company organized under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, Delaware and has all right the necessary authority, power and power capacity to acquire, own acquire the Hotel Assets and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate complete the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of Transaction on the terms and conditions herein contained;
(b) this Agreement and the obligations of this Agreement.
11.3 This Agreement, the Purchaser hereunder and the documents to be and transactions contemplated herein have been duly and validly authorized by all requisite proceedings and constitute and will constitute at Closing (or, in the case of Closing Documents, will constitute when executed and delivered by Purchaser in connection with the consummation of this Agreementdelivered) legal, are and shall be valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with its and their respective terms terms; and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights neither the entering into and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded nor the completion by the Purchaser of the Transaction will conflict with or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in constitute a material breach of, or a material default under any agreementApplicable Laws;
(c) To Purchaser’s actual knowledge, mortgagethere are no judgments, contractorders, undertaking or decrees of any kind against Purchaser unpaid or unsatisfied of record, nor any actions, suits or other instrument legal or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending or, threatened against Purchaser Purchaser, which would impair or otherwise materially adversely affect Purchaser’s have any material adverse effect on the ability of Purchaser to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for consummate the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction transactions contemplated by this Agreement; and
(ivd) Seller has specifically bargained for Purchaser is not, and will not become, a person or entity with whom United States persons or entities are restricted or prohibited from doing business under regulations of the assumption by Purchaser Office of all responsibility to inspect Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s specially designated and investigate blocked persons list) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and of all risk of adverse conditions Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is not and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or engage in any way warrant the accuracy of any marketing information dealings or pamphlets listing transactions or describing the Property be otherwise associated with such persons or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTentities.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Morgans Hotel Group Co.)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller that:
11.1 (i) the Purchaser is a limited partnership duly organized, validly existing and in good standing under the laws of the state of its formation, or otherwise will be Delaware and is qualified to conduct do business in the state every jurisdiction in which the Property is located, and failure to so qualify has had or would reasonably be expected to have a Material Adverse Effect; the Purchaser possesses all right and requisite partnership power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority and all material licenses, permits and authorizations necessary to enter into this Agreement and to consummate carry out the transaction transactions contemplated by this Agreement and has taken all necessary action to authorize Agreement;
(ii) the execution, delivery and performance of this Agreement have been duly authorized by the Purchaser;
(iii) this Agreement constitutes a valid and binding obligation of the Purchaser enforceable in accordance with its terms and conditions (assuming, for purposes of this Agreement.sentence, that this Agreement constitutes a valid and binding obligation of each other party hereto and thereto, enforceable in accordance with its terms);
11.3 This (iv) the execution and delivery by the Purchaser of this Agreement, and the documents to be executed fulfillment of and delivered by Purchaser in connection compliance with the consummation of this Agreementrespective terms hereof by it, are do not and shall be valid and binding not (A) conflict with or result in accordance with their respective terms and conditionsa breach of the terms, except as such enforceability may be limited by bankruptcyconditions or provisions of, insolvency(B) constitute a default under, reorganization(C) result in a violation of, moratorium or (D) require any authorization, consent, approval, exemption or other laws affecting creditors’ rights and action by general principles or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to, the organizational documents of equity (whether applied in a proceeding at law the Purchaser, or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalityregulation to which it is subject, or (ii) result in a material breach of, or a material default under any agreement, mortgageinstrument, contractorder, undertaking judgment or other instrument or document decree to which Purchaser is a party or by which Purchaser it is bound or otherwise subject;
(v) the Purchaser is an "accredited investor" (as such term is defined under Regulation D of the Securities Act) and is acquiring the Purchaser Stock purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such
(vi) there are no claims for brokerage commissions, finders' fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon the Purchaser; the Purchaser shall pay, and hold the Existing Stockholders harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys' fees and out-of-pocket expenses) arising in connection with any claim by, through or under the Purchaser; and
(vii) to the Purchaser's knowledge, the purchase of Purchaser Stock by the Purchaser hereunder is not prohibited by any applicable law or governmental rule or regulation and will not subject the Purchaser to any material penalty, liability or, in the Purchaser's reasonable judgment, other materially onerous condition under or pursuant to any applicable law or governmental rule or regulation, and the purchase of the Purchaser Stock by the Purchaser hereunder is permitted by laws, rules and regulations of the jurisdictions and governmental authorities and agencies to which the Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Recapitalization Agreement (Living Centers of America Inc)
Purchaser’s Representations. To induce Seller to enter into this Agreement and to sell the Property, Purchaser hereby represents and warrants to Seller that:
11.1 (i) Except for this Agreement, Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, has entered into no other purchase or otherwise will be qualified commission agreement with respect to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach ofPurchaser shall pay at or prior to Closing all claims, liabilities or a material default under any agreementexpenses associated with its inspection, mortgage, contract, undertaking or other instrument or document permitting and development of the Property up to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectthe Closing Date.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 (iii) Purchaser has not (ia) made a general assignment for the benefit of creditors; , (iib) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, or suffered the filing of an involuntary petition by Purchaser’s creditors; , (iiic) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all all, or substantially all all, of Purchaser’s assets; , (ivd) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all all, or substantially all all, of Purchaser’s assets; , or (ve) admitted in writing Purchaser’s its inability to pay Purchaser’s its debts as they come fall due; , and no such action is threatened or (vi) made an offer contemplated. If any of settlementsuch actions have been taken or brought against Purchaser, extension then prior to the date hereof the same have been fully disclosed and Purchaser discharged therefrom so that there are no prohibitions or composition to conditions upon Purchaser’s creditors generallyacquisition of the Property.
11.7 Purchaser does hereby acknowledge, represent, warrant (iv) Neither the execution and agree to and with Seller that, except as otherwise expressly provided in delivery of this Agreement: (i) Purchaser is expressly purchasing Agreement nor the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and consummation of the transaction contemplated by this Agreement; Agreement will result (iveither immediately or after the passage of time and/or the giving of notice) Seller has specifically bargained for the assumption in breach or default by Purchaser of all responsibility under any agreement or understanding to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of which Purchaser is a party or by which Purchaser may be bound or which would have an effect upon Purchaser’s ability to fully perform its obligations under this Agreement in consideration thereof; Agreement.
(v) Purchaser has undertaken the right, power and authority to execute, deliver and perform this Agreement without obtaining any consents or approvals from or the taking of any action with respect to, any third parties, and Purchaser has taken all required limited liability company action to enter into and perform its obligations under this Agreement. This Agreement, when executed and delivered by Purchaser and Seller, will undertake all such inspections constitute the valid and investigations binding agreement of Purchaser.
(vi) None of Purchaser or any of its Affiliates, nor any of their respective directors, officers, members, managing members, agents, representatives and/or affiliates, has been, is now, or shall be at any time prior to or at the Closing, an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity (collectively or individually as the context shall so require, a “Person”) with whom a United States citizen, entity organized under the laws of the Property as Purchaser deems necessary United States or appropriate its territories or entity having its principal place of business within the United States or any of its territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United Sates law, regulation, executive orders and lists published by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) (including those executive orders and lists administered by OFAC with respect to Persons that have been designated by executive order or by the Property sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business so must limit their interactions to types approved by OFAC “Specially Designated Nationals and blocked Persons”) or otherwise. Neither Purchaser or any of its Affiliates has been, is now nor shall be at any time prior to or at the suitability Closing a Person with whom a U.S. Person, including a United Sates Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the Property for Purchaser’s intended usetype contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and based upon same, Purchaser is lists administered by the OFAC (including those executive orders and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation lists published by OFAC with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or othersSpecially Designated Nationals and Blocked Persons) or otherwise.
(vii) Neither Purchaser or any of its Affiliates: (A) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the educationUnited States would be predicate crimes to money laundering, skillsor any violation of any Anti-Money Laundering Laws; (B) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (C) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws or otherwise been in violation of any Anti-Money Laundering Laws. As used herein, competence the term “Anti-Money Laundering Laws” means laws, regulations and sanctions, state and federal, criminal and civil, that: (w) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (x) limit commercial transactions with designated countries or diligence individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the interests of the preparers thereof or the physical condition or any other aspect of all or any part United States; (y) require identification and documentation of the Property as an inducement parties with whom a Financial Institution conducts business; or (z) are designed to Purchaser disrupt the flow of funds to enter into this Agreement terrorist organizations. Such laws, regulations and thereafter sanctions shall be deemed to purchase include the Property or for any other purposeUSA PATRIOT Act of 2001, Pub. Without limiting L. No. 107-56 (the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES“Patriot Act”), WHETHER EXPRESSED OR IMPLIEDthe Bank Secrecy Act, INCLUDING31 U.S.C. Section 5311 et seq., BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYthe Trading with the Enemy Act, TAX LIABILITIES50 U.S.C. App. Section 1 et seq., ZONINGthe International Emergency Economic Powers Act, PROPERTY VALUE50 U.S.C. Section 1701 et seq., AVAILABILITY OF ACCESS OR UTILITIESand the sanction regulations promulgated pursuant thereto by the OFAC, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTas well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
Appears in 1 contract
Sources: Contract for Sale and Purchase of Real Property (Tupperware Brands Corp)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatand in favour of the Vendor that as of the date of this Agreement (unless otherwise specified) and as of the Closing Date:
11.1 (a) the Purchaser is duly organized(or if an affiliate of the Purchaser will be taking title to the Subject Assets at Closing, validly such affiliate will be at Closing) a corporation existing and in good standing under governed by the laws of the state Province of its formationOntario and has, or otherwise will be qualified have, as the case may be, the necessary corporate authority, power and capacity to conduct business in own the state in which the Property is located, Subject Assets and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and the documents and transactions contemplated herein and to consummate complete the transaction Transaction and perform its obligations under the documents and transactions contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of herein on the terms and conditions herein contained;
(b) the agreement of purchase and sale constituted on the execution and delivery of this Agreement.
11.3 This Agreement, Agreement and the obligations of the Purchaser hereunder and the documents to be executed and delivered transactions contemplated herein have been duly and validly authorized by all requisite corporate proceedings of the Purchaser and constitute (and will constitute at Closing), legal, valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with its and their terms; and neither the entering into nor delivery of this Agreement nor the completion by the Purchaser of the Transaction will conflict with or constitute a default under any Applicable Laws; and no approval or consent of any Governmental Authority is required in connection with the consummation of this Agreement, are execution and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement by the Purchaser and the completion of the Transaction by the Purchaser;
(c) the Purchaser is duly registered, and if an affiliate of the Purchaser will be taking title to the Subject Assets at Closing, such affiliate will be duly registered, in virtue of Subsection (d) of Section V of Part IX of the Excise Tax Act (Canada), and in consequence, in virtue of paragraph 221(2)(b) of such law, the Vendor is not obliged to collect the tax known as the goods and services tax from the Purchaser or such affiliate, as the case may be;
(d) the Purchaser is purchasing, or if an affiliate of the Purchaser will be taking title to the Subject Assets at Closing, such affiliate will be purchasing, the Subject Assets as principal for its own account and same are not precluded or proscribed by, and will not, to being purchased by the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or such affiliate, as the case may be, as an agent, trustee or otherwise on behalf of or for another Person;
(iie) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which the Purchaser is not a party or by which Purchaser is bound or to which Purchaser is subject.non-Canadian within the meaning of the Investment Canada Act (Canada); and
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 (f) the Purchaser has not (i) made a general assignment for retained the benefit services of creditors; (ii) filed any voluntary petition real estate broker or agent in bankruptcy or, to connection with the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction transactions contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatthe Vendor as follows:
11.1 (a) the Purchaser is a corporation duly organized, validly existing and in good standing incorporated under the laws of British Columbia;
(b) the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and Purchaser has all right necessary corporate power, authority and power capacity to acquire, own execute and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into deliver this Agreement and to consummate perform its obligations hereunder and, after the transaction Minority Approval is obtained, the consummation of the transactions contemplated herein shall have been duly authorized by all necessary corporate action on the part of the Purchaser;
(c) the Purchaser is not a party to, bound or affected by or subject to any indenture, agreement, instrument, charter or bylaw provision, law, regulation, order, judgment or decree which would be violated, contravened or breached by the signing and delivery by it of this Agreement and has taken all necessary action to authorize or the execution, delivery and performance by it of any of the terms contained herein;
(d) there is no suit, action, litigation, arbitration proceeding or governmental proceeding, including appeals and conditions of this Agreement.
11.3 This Agreementapplications for review, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreementprogress, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will notpending or, to the best of the Purchaser’s knowledge, (i) violate threatened against or relating to the Purchaser or any provision of any existing lawjudgment, statutedecree, injunction, rule or order, decree, writ or injunction order of any court, governmental department, commission, boardagency, bureauinstrumentality or arbitrator which, agency or instrumentalityin any case, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially might adversely affect Purchaser’s the ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement or to consummate the transactions contemplated therein;
(e) this Agreement and thereafter all other documents contemplated hereunder to purchase which the Property Purchaser is (or for any other purpose. Without limiting will be) a party to in order to complete the generality of any transactions contemplated herein have been (or will be) duly and validly signed and delivered by the Purchaser and constitute (or will constitute) legal, valid and binding obligations of the foregoing, Purchaser specifically acknowledges that Seller does not represent enforceable in accordance with the terms hereof or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaserthereof; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT(f) pursuant to the Commitment Letter, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES)Regions Bank has committed to provide financing to the Purchaser for the purchase of the Shares, WHETHER EXPRESSED OR IMPLIEDsubject to the various covenants and conditions set forth therein. To the best of the knowledge of the Purchaser, INCLUDINGthere is currently no reason to believe that it will be unable to comply with such covenants or to fulfill such conditions, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTand the Purchaser has received no notice or indication from Regions Bank to the effect that the Commitment Letter may be terminated or rescinded or that the commitment may not be fulfilled.
Appears in 1 contract
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatthe Company as follows:
11.1 (a) The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the state jurisdiction of its formationorganization with full right, corporate or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and partnership power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction transactions contemplated by this hereby and otherwise to carry out its obligations hereunder.
(b) The execution and delivery of the Agreement and has taken performance by the Purchaser of the transactions contemplated by the Agreement have been duly authorized by all necessary action to authorize corporate, partnership, limited liability company or similar action, as applicable, on the execution, delivery and performance part of the terms and conditions of this AgreementPurchaser.
11.3 This Agreement(c) The Agreement has been duly executed by the Purchaser, and the documents to be executed and when delivered by the Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective the terms hereof, will constitute the valid and conditionslegally binding obligation of the Purchaser, except enforceable against it in accordance with its terms, except: (i) as such enforceability may be limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium or and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by general principles of equity (whether applied in a proceeding at law or in equity)applicable law.
11.4 (d) The execution, delivery and performance by the Purchaser of this the Agreement are and the consummation by it of the transactions contemplated thereby do not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, not (i) conflict with or violate any provision of any existing lawthe Purchaser’s certificate or articles of incorporation, statute, rule bylaws or order, decree, writ other organizational or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalitycharter documents, or (ii) conflict with or result in a material breach ofviolation of any law, or a material default under any agreementrule, mortgageregulation, contractorder, undertaking judgment, injunction, decree or other instrument restriction of any court or document governmental authority to which the Purchaser is a party subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or affected, except in the case subparagraph (ii) such as could not have or reasonably be expected to which have a material adverse effect on the Purchaser.
(e) The Purchaser is subjectacquiring the Note and the Warrant, as well as the Shares underlying the Warrant, (collectively referred to with the Note and Warrant as the “Securities”), for the Purchaser’s own account and not as a nominee or agent for any other person, and not with the view to, or for sale in connection with, any distribution thereof.
11.5 There are no suits(f) The Purchaser is an “accredited investor,” as the Purchaser is a person or entity described in one of the items in Annex A attached hereto.
(g) The Purchaser is not purchasing the Securities as a result of any advertisement, actionsarticle, arbitrations, or legal, administrative notice or other proceedings pending against communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
(h) The Purchaser which would impair or otherwise materially adversely affect understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser’s ability compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Purchaser set forth herein in order to perform its obligations under this Agreementdetermine the availability of such exemptions and the eligibility of the Purchaser to acquire the Securities.
11.6 Purchaser has not (i) made The offer and sale of the Securities has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and that, accordingly, they will not be transferable except as permitted under various exemptions set forth in the Securities Act, or upon satisfaction of the registration and prospectus delivery requirements of the Securities Act, and that there will be a general assignment for legend printed upon the benefit Securities so indicating.
(j) The Securities may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of creditors; (ii) filed any voluntary petition in bankruptcy or, unless the Purchaser first provides to the best Company and opinion of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) counsel to the best of Purchaser’s knowledgeeffect that such sale, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledgetransfer, suffered the attachment assignment, pledge, hypothecation or other judicial seizure disposition will be exempt from the registration and prospectus delivery requirements of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property Securities Act and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken registration or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality qualification requirements of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTapplicable state securities’ law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cortex Pharmaceuticals Inc/De/)
Purchaser’s Representations. Purchaser hereby warrants and represents to Seller, as of the Effective Date and warrants to Seller as of the Closing Date, that:
11.1 (a) Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the state State of its formation, or otherwise will be qualified to conduct business in the state in which the Property is locatedDelaware, and has all right requisite power and power authority to: (i) own the Timber and to acquire, own carry on its business as now being conducted; (ii) execute this Agreement; and operate (iii) perform its obligations and consummate the Propertytransactions contemplated hereby.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the (b) The execution, delivery and performance of this Agreement and the terms consummation of transactions contemplated hereby by Purchaser have been duly and conditions of this Agreement.
11.3 This Agreementvalidly authorized by all necessary company action, and no other company proceedings on the documents part of Purchaser are necessary for it to be authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Purchaser in connection with the consummation of this Agreementand, are assuming due authorization, execution and shall be delivery by Seller, is a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with their respective terms and conditionsits terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or other laws affecting creditors’ rights and by to general principles of equity (whether applied in a proceeding at law or in equity)principles.
11.4 (c) The execution, delivery delivery, and performance by Purchaser of this Agreement will not result in a breach or violation of, or default under, the terms, conditions or provisions of its articles of incorporation, bylaws or any standing resolution of its board of directors, members or managers (as the case may be) or any other corporate document.
(d) There are not precluded no approvals, consents or proscribed byregistration requirements with respect to any governmental authority that are or will be necessary for the valid execution and delivery by Purchaser of this Agreement, and will notor the consummation of the transactions contemplated hereby, to the best of Purchaser’s knowledge, other than those which (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalityhave been obtained, or (ii) result are of a routine nature and not customarily obtained or made prior to execution of purchase and sale agreements in transactions similar in nature and size to those contemplated hereby and where the failure to obtain the same would not, individually or in the aggregate, have a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect adverse effect on Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (ie) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy There is no pending or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by threatened action or proceeding before any court, governmental agency or arbitrator which may materially adversely affect Purchaser’s creditors; ability to perform this Agreement.
(iiif) Purchaser has the financial capacity, or is diligently using its best efforts to obtain the best of Purchaser’s knowledgefinancial capacity, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; the Purchase Price payable at the Closing and all expenses and fees incurred by Purchaser pursuant to or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and in connection with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction transactions contemplated by this Agreement; .
(ivg) Seller Purchaser (which for this purpose includes Purchaser’s partners, members, principal stockholders and any other constituent entities) (i) has not been designated as a “specifically bargained for designated national and blocked person” on the assumption most current list published by Purchaser the U.S. Treasury Department Office of Foreign Assets Control at its official website, <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/enforcement/ofac/sdn/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (ii) is currently in compliance with and will at all responsibility to inspect and investigate times during the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms term of this Agreement remain in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations compliance with the regulations of the Property as Purchaser deems necessary or appropriate with respect to Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and the suitability of the Property for Purchaser’s intended useProhibiting Transactions with Persons Who Commit, and based upon sameThreaten to Commit, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultantsor Support Terrorism), agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTgovernmental action relating thereto.
Appears in 1 contract
Purchaser’s Representations. (i) Purchaser hereby represents and warrants to Seller thatas follows:
11.1 A. Purchaser is a duly organized, formed and validly existing and in good standing limited liability company under the laws of the state State of its formationDelaware, or otherwise will and as of the Closing Date shall be qualified to conduct business in under the laws of the state in which the Property is located, and has all right and power located to acquire, own and operate the Propertyconduct business therein.
11.2 B. Purchaser has the full legal capacityright, right power, authority and authority financial ability to enter into execute and deliver this Agreement and all documents now or hereafter to be executed by it pursuant to this Agreement (collectively, the “Purchaser’s Documents”), to consummate the transaction transactions contemplated by this hereby, and to perform its obligations hereunder and under Purchaser’s Documents.
C. This Agreement and has taken Purchaser’s Documents have been duly authorized by all necessary requisite corporate action to authorize on the execution, delivery and performance part of the terms and conditions of this Agreement.
11.3 This AgreementPurchaser, and are the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and legally binding obligations of Purchaser, enforceable in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)terms.
11.4 The execution, delivery D. This Agreement and performance by Purchaser of this Agreement are Purchaser’s Documents do not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate not contravene any provision of the articles and bylaws of Purchaser, any existing lawjudgment, statute, rule or order, decree, writ or injunction issued against Purchaser, or any provision of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) Laws applicable to Purchaser. The consummation of the transactions contemplated hereby will not result in a material breach of, or constitute a material default or event of default by Purchaser under any agreementagreement to which Purchaser or any of its assets are subject or bound and will not result in a violation of any Laws applicable to Purchaser.
E. Purchaser has no knowledge as of the date hereof of pending actions, mortgagesuits, contract, undertaking proceedings or other instrument or document investigations to which Purchaser is a party before any court or by other governmental authority which Purchaser is bound or likely to which Purchaser is subjecthave a material adverse impact on the transactions contemplated hereby.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition The representations and warranties of Purchaser set forth in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iiiSection 6(b)(i) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided elsewhere in this Agreement: (i) Purchaser is expressly purchasing Agreement shall be true, accurate and correct in all material respects upon the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by execution of this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility , shall be deemed to inspect be repeated on and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations as of the Property as Purchaser deems necessary Closing Date and shall survive the Closing for a period of one hundred eighty (180) days and shall not be merged therein for such period, and no action or appropriate with respect to claim based thereon shall be commenced after such period unless the Property and the suitability factual basis of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and claim or cause of action asserted in the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property action was first identified with reasonable clarity in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller a written notice delivered to Purchaser not later than one hundred eighty (whether prepared by or for Seller or others180) or days after the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Purchaser’s Representations. Purchaser hereby represents represents, warrants and warrants to Seller thatacknowledges and agrees with the following:
11.1 (a) Purchaser is duly organizedfully able, validly existing authorized and in good standing under the laws of the state of its formation, or otherwise will be qualified empowered to conduct business in the state in which the Property is locatedexecute and deliver this Agreement, and has all right and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction any other agreement or instrument contemplated by this Agreement Agreement, and has taken all necessary action to authorize the execution, delivery perform its obligations contemplated hereby and performance of the terms and conditions of this Agreement.
11.3 thereby. This Agreement, and the documents to be executed any such other agreement or instrument, upon execution and delivered delivery by Purchaser (and assuming due execution and delivery hereof and thereof by the other parties hereto and thereto), will constitute the legal, valid and binding obligation of Purchaser, in connection each case enforceable against it in accordance with its respective terms.
(b) Neither the consummation execution and delivery of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditionsnor the consummation of the transactions contemplated hereby, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing lawviolate, statute, rule conflict with or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material the breach or termination of, or otherwise give any other contracting party the right to terminate, or constitute a material default under the terms of, any agreement, mortgage, contractbond, undertaking indenture or other instrument or document any agreement to which the Purchaser is a party or by which the Purchaser is or its property or assets may be bound or to which Purchaser is subject.
11.5 There are no suitsmaterially affected, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed violate any voluntary petition in bankruptcy orjudgment, to order, injunction, decree or award of any court, administrative agency or governmental body against, or binding upon, Purchaser or upon the best property of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; or (iii) constitute a violation by Purchaser of any applicable law or regulation of any jurisdiction as such law or regulation relates to Purchaser or to the best property of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generallyProperty.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (ic) Purchaser is expressly purchasing acquiring the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect Shares being purchased pursuant to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultantsaccount and for investment purposes and not with a view to distribution or resale, agentsnor with the intention of selling, legal counsel and officers, Purchaser has approved transferring or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect otherwise disposing of all or any part of the Property Shares except in compliance with all applicable provisions of the Securities Act of the 1933, as amended (the “Act”), the rules and regulations promulgated by the Securities and Exchange Commission (“SEC”) thereunder, and applicable state securities laws.
(d) Purchaser has received all information Purchaser considers necessary or advisable to make a decision concerning the purchase of the Shares, and has had an inducement opportunity to review all documents relating to the Company that Purchaser deems necessary in the decision to purchase the Shares, including without limitation, all documents filed by the Company with the SEC. Purchaser understands that the Company is a shell company, as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
(b) Purchaser or Purchaser’s representative, as the case may be, has such knowledge and experience in financial, tax and business matters so as to enable Purchaser to utilize the information made available to Purchaser to enter into evaluate the merits and risks of an investment in the Shares and to make an informed decision with respect thereto.
(c) Purchaser recognizes that investment in the Shares involves substantial risks, including loss of the entire amount of such investment, has taken full cognizance of and understands all of the risks related to a purchase of the Shares. Purchaser further recognizes that no Federal or state agencies have made any finding or determination as to the fairness of this Agreement and thereafter investment or any recommendations or endorsement of the Shares.
(d) Purchaser hereby agrees not to purchase or sell the Property Company’s stock or for any other purpose. Without limiting equity instrument related to the generality of any Company’s stock “on the basis of,” as such term is defined in Rule 10b5-1 of the foregoingSecurities and Exchange Act of 1934, any material nonpublic information.
(e) Purchaser specifically acknowledges understands that Seller does the Shares have not represent or in any way warrant been, and will not be, registered under the Act, by reason of a specific exemption from the registration provisions of the Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of any marketing information Purchaser’s representations as expressed herein. Purchaser understands that the Shares constitute “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, Purchaser must hold theShares indefinitely unless they are registered with the SEC and qualified by state authorities, or pamphlets listing an exemption from such registration and qualification requirements is available.
(f) Purchaser understands that all certificates representing securities of the Company received by it pursuant to this Agreement shall bear the following legend, or describing one substantially similar thereto: “The securities represented by this certificate have not been registered under the Property Securities Act of 1933. The shares have been acquired for investment and may not be sold, transferred or assigned in the informationabsence of an effective registration statement for those shares under the Securities Act of 1933, if anyas amended, provided by Seller or an opinion satisfactory to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTthe Company's counsel that registration is not required under said Act.”
Appears in 1 contract
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows:
11.1 (i) Purchaser is a corporation duly organized, organized and validly existing and in good standing under the laws of the state State of its formation, or otherwise Delaware and as of the Closing will be qualified to conduct do business and in good standing in the state in which the Property is located, and State of New York. Purchaser has all right and requisite power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement own, lease and operate its properties and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the carry on its business as now being conducted;
(ii) The execution, delivery and performance of this Agreement (including the terms execution and conditions delivery of this Agreement.
11.3 the Lease) are within Purchaser's power and as of the Closing Date will have been duly authorized by all necessary or proper corporate action. This Agreement, and the documents to be Agreement has been validly executed and delivered by Purchaser in connection with and upon receipt of all necessary or proper corporate action will constitute the consummation of this Agreement, are and shall be valid and binding obligation of Purchaser enforceable against it in accordance with their respective terms its terms, and conditionsthe Lease, when executed by Purchaser will have been duly executed and will constitute the valid and binding obligation of Purchaser enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, or other similar laws of general application affecting the rights of creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 . The execution, delivery and performance by Purchaser of this Agreement are will not precluded (a) conflict with, or proscribed result in any breach or violation of or default under its certificate of incorporation or by-laws, and will not, to the best of Purchaser’s knowledge, or (ib) violate any provision of any existing law, statuteorder, rule or rule, regulation, judgment, order, decree, writ or injunction applicable to Purchaser. Except as provided in Paragraph 36 hereof, no consent or approval by any governmental authority or governmental person is required (or, if required, has been obtained) in connection with the execution, delivery and performance of any courtthis Agreement by Purchaser (including the execution and delivery of the Lease);
(iii) The execution, governmental departmentdelivery, commission, board, bureau, agency or instrumentalityand performance by Purchaser of this Agreement will not conflict with, or (ii) result in a material any breach ofor violation of or default (or give rise to any right of termination, cancellation or a material default acceleration) under any agreementnote, bond, mortgage, contractlease, undertaking other instrument or obligation indenture, license, permit, agreement or other instrument or document to which Purchaser is a party or by which it is or may be bound;
(iv) Schedule "N" attached hereto and made a part hereof sets forth the names and residence addresses as of the date hereof of the Chief Executive Officer, Chairman of`the Board, President, Chief Financial Officer, and each general partner of Purchaser, and of each person, firm or corporation having an outright or beneficial interest in twenty percent (20%) or more of the stock ownership in Purchaser. Neither Purchaser nor any person, firm or corporation listed on Schedule "N" has been convicted of or under current indictment for any crime and is not currently involved in criminal anti-trust or fraud litigation, or is under a conflict of interest as defined under the laws of the State of New York with any Commissioner of Seller;
(v) Purchaser is bound not aware of any litigation or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings proceeding pending against or relating to Purchaser which which, if determined adversely to Purchaser, would impair reasonably be expected, individually or otherwise in the aggregate, giving effect to current insurance coverage, to materially adversely affect Purchaser’s ability to perform its obligations under the execution, delivery and performance of this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition Agreement by Purchaser’s creditors; (iii) to . All of the best representations made by Purchaser are true and correct in all material respects as of Purchaser’s knowledgethe date made, suffered and will be true and correct in all material respects as of the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller thatClosing Date, except as otherwise expressly provided disclosed to Seller. The representations made by Purchaser in this Agreement: (i) Purchaser is expressly purchasing subparagraph shall survive the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTClosing.
Appears in 1 contract
Purchaser’s Representations. . Purchaser hereby represents and warrants to Seller that:
11.1 as follows as of the date of the Agreement through the Closing: Purchaser (i) is duly organizedorganized (or formed), validly existing and in good standing under the laws of the its state or commonwealth of its formationorganization, or otherwise will be qualified to conduct business in the state in which the Property is located, and (ii) has all right and necessary power to acquire, own execute and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into deliver this Agreement and all documents contemplated hereunder to consummate be executed by them, respectively, and to perform all of their respective obligations hereunder and thereunder, (iii) CDMO is the transaction contemplated by this Agreement owner and has taken all necessary action to authorize the execution, delivery and performance holder of the terms leasehold estate of “Tenant” under the Sublease and conditions CDMO is not a party to any leases, subleases, licenses, or other agreements giving any other party the right to occupy the Real Property other than the Sublease; and (iv) to Purchaser’s knowledge, (1) there is no material default on the part of the “Tenant” under the Ground Lease, and (2) the Ground Lease is in full force and effect and there are no agreements related to the Ground Lease except as provided in Recital A on the first page of this Agreement.
11.3 . This Agreement, Agreement and the all documents contemplated hereunder to be executed and delivered by Purchaser in connection with (1) have been duly authorized by all requisite partnership, corporate or other action on the consummation part of this AgreementPurchaser and its general partners or managing members, if any, and (2) are and shall be the valid and legally binding obligation of Purchaser, enforceable in accordance with their respective terms and conditionsterms, except as such enforceability may be limited by subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium arrangement, moratorium, or other similar laws affecting creditors’ the rights of creditors generally. Neither the execution and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed any document contemplated hereunder to be executed by Purchaser, nor the performance of the obligations of Purchaser or its general partners or managing members, if any, hereunder or thereunder will result in the violation of any law or any provision of the partnership agreement, articles of incorporation, by, and will not, to the best -laws or other organizational or governing documents of Purchaser’s knowledge, nor will conflict with any order or decree of any court or governmental authority by which Purchaser or its general partners or managing members, if any, are bound.
(i) violate any provision of any existing lawhas not applied for, statuteconsented to, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalityacquiesced to, or is subject to the appointment of a receiver, trustee, custodian, liquidator or other similar official for itself or for all or a substantial part of its assets; (ii) result in is not subject to a material breach ofbankruptcy, insolvency, reorganization, liquidation, dissolution or a material default under any agreementsimilar proceeding, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser and has not admitted in writing its inability to pay its debts as they become due; (iiii) has not made a general an assignment for the benefit of creditors; (iiiv) has not filed a petition or an answer seeking, consenting to, or acquiescing in a reorganization or an arrangement with creditors, or sought to take advantage of any voluntary bankruptcy law, insolvency law or other law for the benefit of debtors; or (v) has not filed an answer admitting the material obligations of a petition filed against it in bankruptcy orany bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding. Purchaser represents and warrants to Seller that Purchaser is not now nor shall be at any time until the Closing under this Agreement a Person with whom a U.S. Person, including a Financial Institution, is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise. Purchaser (a) is not, to the best of Purchaser’s knowledge, suffered under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the filing United States would be predicate crimes to money laundering, or any violation of an involuntary petition by Purchaser’s creditorsany Anti-Money Laundering Laws; (iiib) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all has not been assessed civil or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come duecriminal penalties under any Anti-Money Laundering Laws; or (vic) made an offer has not had any of settlementits funds seized or forfeited in any action under any Anti-Money Laundering Laws. The foregoing representations and warranties shall survive the Closing. Purchaser agrees to indemnify, extension or composition protect, defend (with counsel satisfactory to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant Seller) and agree to and with hold harmless Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereofPerson who owns a direct or indirect interest in Seller (the “Seller Parties”) in its existing condition “AS ISfrom and against any and all claims, WHERE ISdamages, AND WITH ALL FAULTS” whether known or unknown with respect to all factslosses, circumstancesliabilities, conditions costs and defectsexpenses, both patent including, without limitation, reasonable expenses of investigation and latent; (ii) Seller has no obligation to inspect for, repair or correct reasonable attorneys’ fees and disbursements arising out of any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption breach by Purchaser of all responsibility to inspect the representations and investigate the Property warranties in this Section 7.1, and of all risk of adverse conditions and has structured the Purchase Price and other terms such obligations shall survive Closing or termination of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAgreement.
Appears in 1 contract
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows:
11.1 (a) Purchaser is duly organizedis, validly existing and in good standing under at the laws of the state of its formationClosing shall be, or otherwise will be qualified a Delaware limited liability company authorized to conduct transact business in the state in which the Property State of California. The sole member of Purchaser is located▇▇▇▇▇▇ ▇.▇., and has all right and power to acquirewhose general partner is ▇▇▇▇▇▇ Pacific Properties, own and operate the PropertyInc., a Maryland corporation (“▇▇▇▇▇▇ Inc.”).
11.2 (b) Purchaser has the full legal capacityright, right power, authority and authority financial ability to enter into execute and deliver this Agreement Contract, and all documents now or hereafter to be executed by it pursuant to this Contract (collectively, the “Purchaser Documents”), to consummate the transaction transactions contemplated by this Agreement hereby, and to perform its obligations hereunder and under the Purchaser Documents, and no consent of any other party is required that has taken all necessary action to authorize not heretofore been obtained.
(c) This Contract and the execution, delivery Purchaser Documents do not and performance will not contravene provisions of the terms and conditions of this Agreement.
11.3 This Agreementcharter documents, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreementas amended, are and shall be valid and binding in accordance with their respective terms and conditionsor bylaws, except as such enforceability may be limited by bankruptcyamended, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing lawjudgment, statute, rule or order, decree, writ or injunction issued against Purchaser, or any provision of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) laws applicable to Purchaser. The consummation of the transactions contemplated hereby will not result in a material breach of, or constitute a material default or event of default by Purchaser under any agreementagreement to which Purchaser or any of its assets are subject or bound and will not result in a violation of any laws applicable to Purchaser.
(d) There are no pending actions, mortgagesuits, contract, undertaking proceedings or other instrument or document investigations to which Purchaser is a party before any court or by other governmental authority which Purchaser is bound or to which Purchaser is subjectmay have an adverse impact on the transactions contemplated hereby.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 (e) Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, or suffered the filing of an involuntary petition by Purchaser’s its creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s its assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all all, or substantially all all, of Purchaser’s its assets; (v) admitted in writing Purchaser’s its inability to pay Purchaser’s its debts as they come become due; or (vi) made an offer of settlement, extension extension, or composition to Purchaser’s its creditors generally.
11.7 (f) This Contract is a valid and binding obligation of Purchaser.
(g) Neither Purchaser does hereby acknowledgenor any of its affiliates, representnor any of their respective partners, warrant members, shareholders or other equity owners, and agree none of their respective employees, officers, directors, representatives or agents is a person or entity with whom United States persons or entities are restricted from doing business under regulations of OFAC of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not knowingly engage in any dealings or transactions or be otherwise associated with Seller thatsuch persons or entities. Notwithstanding anything contained herein to the contrary, except as otherwise expressly provided in for the purposes of this Agreement: Section 6.5(g) the phrase “any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents” and all similar such phrases shall not include (i) any shareholder of ▇▇▇▇▇▇ Pacific Properties, Inc., (ii) any holder of a direct or indirect interest in a publicly traded company whose shares are listed and traded on a United States national stock exchange or (iii) any limited partner, unit holder or shareholder owning an interest of five percent (5%) or less in Purchaser, ▇▇▇▇▇▇ ▇.▇., or ▇▇▇▇▇▇ Inc., or the holder of any indirect interest in Purchaser. Purchaser is expressly purchasing covenants and warrants that the Property (and any part thereof) representations in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown the preceding sentences of this Section 6.5 will be true on the Closing with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect permitted assignee of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Purchaser’s Representations. Purchaser hereby represents makes the following representations to Seller, each of which shall be true on the Effective Date hereof and warrants to Seller that:
11.1 Purchaser is duly organized, validly existing and in good standing under on the laws date of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the PropertyClosing.
11.2 (a) Purchaser has the legal capacity, right full power and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of carry out the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation provisions of this Agreement, and to execute and deliver all documents which are contemplated by this Agreement, and shall be valid all actions of Purchaser necessary to confer such authority upon the persons executing this Purchase Agreement and binding in accordance with their respective terms and conditionssuch other documents have been, except as such enforceability may be limited by bankruptcyor will be, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)taken.
11.4 The execution(b) As of the Effective Date and as of the date of Closing, delivery and performance by neither Purchaser of this Agreement are not precluded or proscribed by, and will notnor, to the best of Purchaser’s knowledge, any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representative or agents, is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (iincluding those named on OFAC’s Specially Designated and Blocked Persons List) violate or under any provision of any existing law, statute, rule executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (iiSupport Terrorism) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectgovernmental action (“OFAC”).
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against (c) Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability represents that it has sufficient funds to perform its obligations under close this Agreementtransaction.
11.6 (d) Purchaser has not (i) made further represents that the Property will be developed with a general assignment for minimum of 6,000 square feet of office and warehouse facility. Any deviation from this intended use must be authorized by the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted Seller in writing Purchaseror be subject to Seller’s inability Right to pay Purchaser’s debts Repurchase as they come due; set forth in Section 11.13 below. This Agreement does not alleviate the Purchaser from obtaining the necessary approvals, authorizations or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser permits required for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability development of the Property for Purchaser’s intended said use, nor shall this Agreement be construed as granting such approval.
(e) Purchaser acknowledges that pole buildings are prohibited in the Horn Rapids Business Center and based upon same, agrees that Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for not build pole buildings on the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows:
11.1 (a) Purchaser is a corporation that was duly organized, organized and is validly existing and in good standing under the laws of the state State of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the PropertyUtah.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the (b) The execution, delivery and performance of the terms and conditions transactions contemplated by this Agreement have been duly authorized by the Board of this Agreement.
11.3 This AgreementDirectors of Purchaser, and will not contravene any provisions of law, or an order of any court or other agency of government or of its Articles of Incorporation or Bylaws. Any and all consents, approvals, authorizations, or orders of or registrations or qualifications with any person, bank, governmental body, or court having authority or power to regulate supervise or direct the documents to be executed business and delivered by affairs of Purchaser in connection with necessary for the consummation of the transactions specified in this AgreementAgreement shall have been obtained prior to the Effective Date.
(c) This Agreement constitutes the legal, are and shall be valid and binding obligation of Purchaser enforceable against it in accordance with their respective terms and conditionsits terms, except as such enforceability may be limited by subject to the effect of bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and other similar laws relating to or other laws affecting creditors’ ' rights generally and court decisions with respect thereto, and the award by general principles courts of equity (whether applied in a proceeding at law or in equity)money damages rather than specific performance of contractual provisions involving matters other than the payment of money.
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (id) violate Nothing in any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document agreement to which Purchaser is a party prohibits the execution or implementation of this Agreement.
(e) This Agreement is not in violation of any law or regulation of any governmental jurisdiction in which Purchaser does business.
(f) The Common Stock, when issued in accordance with this agreement, will be validly issued, outstanding, fully paid, and non-assessable.
(g) The reports and other documents filed by Purchaser with the SEC were complete and accurate when filed. The financial statements included or referenced therein were prepared in accordance with generally accepted accounting principals and accurately reflect the financial condition of Purchaser and the results of its operations for the periods to which they relate. There has been no material change in the financial condition or the operations of Purchaser which has not been included in a report filed with the SEC.
(h) Purchaser is not a party to any civil litigation or arbitration proceeding except as listed on Schedule 7.02(h). Purchaser has no knowledge of and has received no notice of any criminal, regulatory, or compliance proceedings or threatened proceedings from or by which any government or governmental entity or agency except as listed on the Schedule. Purchaser is bound has provided Seller with a copy of the pleadings or a summary of the proceedings listed, as well as any letters from Purchaser's counsel to which Purchaser is subjectPurchasers auditors for any fiscal year after 1996 relating to litigation, contingent liabilities, and other matters.
11.5 (i) All statements contained in any certificate or other instruments delivered by or on behalf of the Purchaser pursuant hereto, or in connection with the transactions contemplated hereby, shall be deemed representations and warranties by the Purchaser.
(j) The IRS has not audited Purchaser's tax returns since 1994 except as listed on Schedule 7.02(j). Copies of any audit papers and any other communications with the IRS have been delivered to Seller.
(i) Purchaser has duly and timely filed where required all federal, state and local tax returns required to be filed prior to the date of this Agreement, including income, employment, rent and sales and use tax returns, and, except as noted on Schedule 7.02(k), has paid all taxes due and payable on such returns, all deficiencies and assessments notice of which has been received, all other taxes, and all Other Charges due and payable on or before the date of this Agreement. All such tax returns required to be filed after the date of this Agreement and on or prior to the Closing Date, and all such deficiencies, assessments, taxes and Other Charges required to be paid during such period, will be filed and paid prior to the Closing Date.
(ii) There are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax returns by Purchaser or for the payment by, or assessment against, either of any tax, deficiency, assessment or Other Charges.
(iii) (There are no suits, actions, arbitrationsclaims, audits, investigations, inquiries or legal, administrative or other proceedings pending against Purchaser which would impair in respect of any unpaid taxes, deficiencies, assessments or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this AgreementOther Charges and there are no such threatened suits, actions, claims, audits, investigations or inquiries.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) Purchaser has withheld or collected from each payment made to each of its employees the amount of all taxes required to be withheld or collected therefrom and has paid the same to the best of Purchaser’s knowledgeproper tax receiving officers. Purchaser will continue to so withhold, suffered collect and pay such taxes after the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms date of this Agreement in consideration thereof; and to and including the Closing Date.
(v) Purchaser is not in arrears in the payment of Federal, state and local withholding taxes, FICA, Medicare, real estate taxes and assessments, and sales taxes.
(l) Purchaser has undertaken no knowledge of and has received no notice of any release or will undertake all such inspections and investigations other discharge or leak of or storage or possession of any substance or material defined as hazardous under the laws of the Property as United States or Florida. Purchaser deems necessary has no knowledge of and has received no notice of any complaint about violations of environmental law by a former owner or appropriate with respect to the Property and the suitability tenant of the Property for Purchaser’s intended use, and based upon same, any of its existing or former properties.
(m) Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultantsin compliance with, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made received any warranty notice of any violation of, nor any notice regarding a pending site visit or representation with respect to investigation pursuant to, the Occupational Health and Safety Act and the regulations issued pursuant thereto.
(n) Neither Purchaser nor any materials of its officers, employees or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the educationagents, skills, competence or diligence of the preparers thereof or the physical condition or nor any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality person acting on behalf of any of them, has, directly or indirectly, within the foregoingpast five years given or agreed to give any gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office or other person who is or may be in a position to help the business of Purchaser specifically acknowledges that Seller does (or assist it in connection with any actual or proposed transaction) which (i) might subject Purchaser to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not represent given in the past, might have had a materially adverse effect on the assets, business or operations of Purchaser or (iii) if not continued in the future, might adversely affect the assets, business, operations or prospects of Purchaser.
(o) None of the representations, warranties, covenants or agreements by Purchaser in this Agreement, nor any document, certificate or schedule furnished or to be furnished pursuant hereto, or in connection with the transactions contemplated hereby, contains or will contain any way warrant untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the accuracy statements of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTfacts contained therein not misleading.
Appears in 1 contract
Sources: Sale and Purchase of Assets (Imx Pharmaceuticals Inc)
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows:
11.1 (a) Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the state State of its formationDelaware, and is duly qualified and in good standing as a foreign corporation in the State of California;
(b) Except for matters set forth in Section 9.03 and Section 10.12 below, Purchaser is or otherwise prior to Closing will be duly qualified pursuant to conduct business in the state in which the Property is locatedany and all applicable laws, statutes and has all right and power regulations to acquire, own and operate the Property.Assets;
11.2 (c) Purchaser has the legal capacity, right all requisite power and authority to carry on its business as presently conducted, to enter into this Agreement and the other documents and agreements contemplated hereby, to consummate purchase the Assets on the terms described in this Agreement, and to perform its other obligations under this Agreement and the other documents and agreements contemplated hereby. The consummation of the transaction contemplated by this Agreement and has taken all necessary action to authorize the executionwill not violate, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreementnor be in conflict with, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing lawPurchaser's charter, statute, rule bylaws or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalitygoverning documents, or (ii) result in a any material breach of, agreement or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to Purchaser;
(d) The execution, delivery and performance of this Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite corporate actions on the part of Purchaser;
(e) This Agreement has been duly executed and delivered on behalf of Purchaser is bound and all documents required hereunder to be executed and delivered by Purchaser, whether at Closing or otherwise, shall have been duly executed and delivered. This Agreement does, and such documents shall, constitute legal, valid and binding obligations of Purchaser in accordance with their respective terms, subject to which Purchaser is subject.applicable bankruptcy and ether similar laws of general application with respect to creditors;
11.5 (f) There are no suitsbankruptcy, actionsreorganization or arrangement proceedings pending, arbitrationsbeing contemplated by, or legalto the actual knowledge of Purchaser, administrative or other proceedings pending threatened against Purchaser;
(g) Purchaser which would impair or has arranged to have available by the Closing Date sufficient funds to enable the Purchaser to pay in full the Purchase Price as provided in Article 4, together with all costs and expenses relative thereto, and otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.;
11.6 (h) Purchaser has not or prior to Closing will have made financial arrangements which will be adequate to allow Purchaser to comply with all obligations relating to the ownership and operation of the Assets;
(i) made a general assignment for Seller shall not have any obligation or liability to pay any fee or other compensation to any person or entity engaged by Purchaser in connection with this Agreement or the benefit transaction contemplated herein;
(j) Purchaser is purchasing and accepting the Assets "AS IS" without any express or implied warranty of creditors; (ii) filed any voluntary petition in bankruptcy or, to kind. Purchaser is entering into this transaction solely on the best basis of Purchaser’s knowledge's own expertise, suffered inspection, evaluation, familiarity with and knowledge of the filing Assets. Purchaser is not relying on any representation, estimate, claim, warranty, statement, data, or information of an involuntary petition any kind made or provided to Purchaser or any of its employees, agents, consultants, etc., by Purchaser’s creditors; Seller or any employee, agent, or other representative of Seller. No patent or latent condition affecting the Assets (iiior any Asset) to the best in any way, whether now known or discovered or hereafter discovered, shall in any way affect any of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided 's obligations contained in this Agreement: , or give rise to any right of or to damages, rescission, or any other legal or equitable right or remedy on behalf of Purchaser against Seller; and
(ik) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “PURCHASER ACKNOWLEDGES THAT SELLER HAS NOT MADE, AND SELLER HEREBY EXPRESSLY DISCLAIMS AND NEGATES, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR CONFORMITY TO MODELS OR SAMPLES OR MATERIALS, AS WELL AS ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE ASSETS OR THEIR CONDITION. PURCHASER IS ACQUIRING THE ASSETS IN AN "AS-IS, WHERE IS, AND " CONDITION WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatthe Company as follows:
11.1 (a) The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the state jurisdiction of its formationorganization with full right, corporate or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and partnership power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate the transaction transactions contemplated by this hereby and otherwise to carry out its obligations hereunder.
(b) The execution and delivery of the Agreement and has taken performance by the Purchaser of the transactions contemplated by the Agreement have been duly authorized by all necessary action to authorize corporate, partnership, limited liability company or similar action, as applicable, on the execution, delivery and performance part of the terms and conditions of this AgreementPurchaser.
11.3 This Agreement(c) The Agreement has been duly executed by the Purchaser, and the documents to be executed and when delivered by the Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective the terms hereof, will constitute the valid and conditionslegally binding obligation of the Purchaser, except enforceable against it in accordance with its terms, except: (i) as such enforceability may be limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium or and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by general principles of equity (whether applied in a proceeding at law or in equity)applicable law.
11.4 (d) The execution, delivery and performance by the Purchaser of this the Agreement are and the consummation by it of the transactions contemplated thereby do not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, not (i) conflict with or violate any provision of any existing lawthe Purchaser’s certificate or articles of incorporation, statute, rule bylaws or order, decree, writ other organizational or injunction of any court, governmental department, commission, board, bureau, agency or instrumentalitycharter documents, or (ii) conflict with or result in a material breach ofviolation of any law, or a material default under any agreementrule, mortgageregulation, contractorder, undertaking judgment, injunction, decree or other instrument restriction of any court or document governmental authority to which the Purchaser is a party subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or affected, except in the case subparagraph (ii) such as could not have or reasonably be expected to which have a material adverse effect on the Purchaser.
(e) The Purchaser is subjectacquiring the Shares and the Warrants, as well as the shares of Common Stock underlying the Warrants, if any (collectively referred to with the Shares and Warrants as the “Securities”), for the Purchaser’s own account and not as a nominee or agent for any other person, and not with the view to, or for sale in connection with, any distribution thereof.
11.5 There are no suits(f) The Purchaser is an “accredited investor,” as the Purchaser is a person or entity described in one of the items in Annex B attached hereto.
(g) The Purchaser is not purchasing the Securities as a result of any advertisement, actionsarticle, arbitrations, or legal, administrative notice or other proceedings pending against communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
(h) The Purchaser which would impair or otherwise materially adversely affect understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser’s ability compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Purchaser set forth herein in order to perform its obligations under this Agreementdetermine the availability of such exemptions and the eligibility of the Purchaser to acquire the Securities.
11.6 Purchaser has not (i) made The offer and sale of the Securities has not been registered under the Securities Act, and that, accordingly, they will not be transferable except as permitted under various exemptions set forth in the Securities Act, or upon satisfaction of the registration and prospectus delivery requirements of the Securities Act, and that there will be a general assignment for legend printed upon the benefit Securities so indicating.
(j) The Securities may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of creditors; (ii) filed any voluntary petition in bankruptcy or, unless the Purchaser first provides to the best Company an opinion of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) counsel to the best of Purchaser’s knowledgeeffect that such sale, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledgetransfer, suffered the attachment assignment, pledge, hypothecation or other judicial seizure disposition will be exempt from the registration and prospectus delivery requirements of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property Securities Act and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken registration or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality qualification requirements of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTapplicable state securities’ law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cortex Pharmaceuticals Inc/De/)
Purchaser’s Representations. (a) The Purchaser hereby represents represents, warrants and warrants covenants to Seller and with the Vendor that:
11.1 (i) the Purchaser is is, and at the Closing Date shall continue to be, a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and the state laws of its formation, or otherwise will be qualified to conduct business in the state those jurisdictions in which it is required to be registered in order to give effect to this Agreement;
(ii) the Property is located, and Purchaser has all right and requisite power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate purchase and pay for the transaction contemplated by Securities and Office and Administrative Assets on the terms described herein and to perform its other obligations under this Agreement and has taken all corporate action necessary action to authorize the execution, delivery and performance of this Agreement and the terms purchase of the Securities and conditions Office and Administrative Assets in accordance with this Agreement;
(iii) the execution and delivery of this Agreement.
11.3 This Agreement, Agreement and each and every agreement or document to be executed and delivered hereunder and the consummation of the transactions contemplated herein will not violate, nor be in conflict with, the constating documents or bylaws of the Purchaser, or any provision of any agreement or instrument to which the Purchaser is a party or is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Purchaser;
(iv) this Agreement has been duly executed and delivered by the Purchaser and all documents required hereunder to be executed and delivered by the Purchaser in connection with the consummation of shall have been duly executed and delivered and this AgreementAgreement does, are and shall be such documents will, constitute legal, valid and binding obligations of the Purchaser enforceable in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity terms;
(whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to v) the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of this transaction for which the benefit of creditors; (ii) filed Vendor shall have any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all obligation or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or liability;
(vi) made an offer the Purchaser shall comply with the provisions of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: the Investment Canada Act (iCanada) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated Competition Act (Canada), if applicable;
(vii) there are no necessary regulatory approvals or rulings required to be obtained by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement permit the transactions contemplated herein to be completed except approvals and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the informationrulings, if any, provided by Seller under the Competition Act (Canada);
(viii) the Purchaser shall comply with all applicable statutes, laws and Regulations required for the approval of all Well license transfers from the Vendor and/or the Partnership to the Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTix) The Purchaser is acquiring the Securities and Office and Administrative Assets as principal and not as agent.
Appears in 1 contract
Sources: Partnership Purchase Agreement (Canetic Resources Trust)
Purchaser’s Representations. The Purchaser hereby covenants with and represents and warrants to Seller the Vendor realizing that the Vendor is relying upon such covenants, representations and warranties, that:
11.1 (a) The Purchaser is duly organized, incorporated and validly existing and in good standing under the laws of the state of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, Peru and has all right good right, full power and power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and absolute authority to enter into purchase the Assets from the Vendor according to the true intent and meaning of this Agreement;
(b) The execution, delivery of, performance of and compliance with the terms of this Agreement and to consummate the transaction contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents any agreements to be executed and delivered pursuant hereto by the Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are will not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material any breach of, or constitute a material default under and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under any agreementterm or provision of the articles, by-laws or resolutions of shareholders or directors of the Purchaser or any indenture, mortgage, note, contract, undertaking agreement (written or oral), instrument, lease or other instrument or document to which the Purchaser is a party or by which Purchaser it is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrationsbound, or any judgment, decree, order, statute, rule or regulation applicable to the Purchaser;
(c) This Agreement has been duly authorized, executed and delivered by the Purchaser and all other documents executed and delivered by the Purchaser pursuant hereto have been duly authorized, executed and delivered by the Purchaser and constitute legal, administrative valid and binding obligations of the Purchaser enforceable in accordance with their respective terms, subject to the qualification that such enforceability may be subject to (i) bankruptcy, insolvency, fraudulent preference, reorganization or other proceedings pending against Purchaser which would impair laws relating to or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.affecting creditors rights generally; and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at equity or in law);
11.6 (d) The Purchaser has not (i) made a general assignment incurred any liability, contingent or otherwise, for the benefit of creditors; (ii) filed any voluntary petition broker's, agent's or finder's fees in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken for which the Vendor shall have any obligation or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTliability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parker Drilling Co /De/)
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas follows as of the date of the Agreement through the Closing:
11.1 (a) Each of Purchaser and its general partners or managing members, if any, (i) is duly organizedorganized (or formed), validly existing and in good standing under the laws of the their respective state or commonwealth of its formation, or otherwise will be qualified to conduct business in the state in which the Property is locatedorganization, and (ii) has all right and necessary power to acquire, own execute and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into deliver this Agreement and to consummate the transaction all documents contemplated by this Agreement and has taken all necessary action to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents hereunder to be executed by them, respectively, and delivered to perform all of their respective obligations hereunder and thereunder. This Agreement and all documents contemplated hereunder to be executed by Purchaser in connection with (1) have been duly authorized by all requisite partnership, corporate or other action on the consummation part of this AgreementPurchaser and its general partners or managing members, if any, and (2) are and shall be the valid and legally binding obligation of Purchaser, enforceable in accordance with their respective terms terms. Neither the execution and conditionsdelivery of this Agreement or any document contemplated hereunder to be executed by Purchaser, except as such enforceability may be limited nor the performance of the obligations of Purchaser hereunder or thereunder will result in the violation of any law or any provision of the partnership agreement, articles of incorporation, by‑laws or other organizational or governing documents of Purchaser, or conflict with any order or decree of any court or governmental authority by which Purchaser is bound.
(b) Neither Purchaser nor any of its general partners or managing members, if any, (i) has applied for, consented to, acquiesced to, or is subject to the appointment of a receiver, trustee, custodian, liquidator or other similar official for itself or for all or a substantial part of its assets; (ii) is subject to a bankruptcy, insolvency, reorganization, moratorium liquidation, dissolution or similar proceeding, or has admitted in writing its inability to pay its debts as they become due; (iii) has made an assignment for the benefit of creditors; (iv) has filed a petition or an answer seeking, consenting to, or acquiescing in a reorganization or an arrangement with creditors, or sought to take advantage of any bankruptcy law, insolvency law or other laws affecting creditors’ rights and by general principles law for the benefit of equity debtors; or (whether applied v) has filed an answer admitting the material obligations of a petition filed against it in a proceeding at law any bankruptcy, insolvency, reorganization, liquidation, dissolution or in equity)similar proceeding.
11.4 The execution(c) Neither Purchaser’s assets, delivery and performance nor the assets to be used by Purchaser to acquire the Property, constitute “plan assets” within the meaning of this Agreement are 29 C.F.R. Section 2510.3‑101, as modified by Section 3(42) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Purchaser is not precluded or proscribed by, and will nota “governmental plan” within the meaning of Section 3(32) of ERISA and, to the best of Purchaser’s knowledge, (i) violate any provision the execution of any existing lawthis Agreement and the purchase of the Property by Purchaser is not subject to state statutes regulating investments of, statute, rule or order, decree, writ or injunction of any courtand fiduciary obligations with respect to, governmental department, commission, board, bureau, agency or instrumentality, or plans.
(iid) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document There is no agreement to which Purchaser is a party or by to Purchaser’s knowledge binding on Purchaser which Purchaser is bound in conflict with this Agreement. There is no action or proceeding pending or, to which Purchaser is subject.
11.5 There are no suitsPurchaser’s knowledge, actions, arbitrations, or legal, administrative or other proceedings pending threatened against Purchaser which would impair challenges or otherwise materially adversely affect impairs Purchaser’s ability to execute or perform its obligations under this Agreement.
11.6 (e) Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy orrepresents and warrants to Seller that neither Purchaser nor, to the best of Purchaser’s knowledge, suffered any Person who owns a controlling direct or indirect interest in Purchaser (collectively, a “Purchaser Party”), is now nor shall be at any time until the filing Closing under this Agreement an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government authority or any other form of an involuntary petition by Purchaser’s creditors; entity (iiicollectively, a “Person”) to with whom a United States citizen, entity organized under the best laws of Purchaser’s knowledgethe United States or its territories or entity having its principal place of business within the United States or any of its territories (collectively, suffered a “U.S. Person”), including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction type contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all , whether such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.prohibition arises under United
Appears in 1 contract
Sources: Sale, Purchase and Escrow Agreement (Hines Global Reit Ii, Inc.)
Purchaser’s Representations. The Purchaser hereby represents represents, warrants and warrants covenants to Seller thatthe Transferors and CSI as follows:
11.1 (a) All corporate action required to be taken by the Purchaser is duly organized, validly existing and in good standing under order to authorize the laws Purchaser to enter into this Agreement has been taken or will be taken prior to the transfer required hereby. All action on the part of the state Purchaser necessary for the execution and delivery of its formation, or otherwise will this Agreement and the performance of all obligations of the Purchaser under this Agreement to be qualified to conduct business in performed as of the state in which the Property is located, and date hereof has all right and power to acquire, own and operate the Property.
11.2 been taken. The Purchaser has the legal capacity, right full power and authority to enter into this Agreement and to consummate the transaction contemplated by perform its obligations under this Agreement and has taken all necessary action this Agreement constitutes its valid and legally-binding obligation, enforceable against the Purchaser in accordance with its terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to authorize the availability of specific performance, injunctive relief, or other equitable remedies. The execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This Agreement, and the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are by the Purchaser will not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or violation of or constitute a material default by the Purchaser under any agreement, mortgage, contract, undertaking or other instrument or document order to which the Purchaser is a party or by which the Purchaser is bound or any law or regulation applicable to which Purchaser is subjectit.
11.5 There (b) The Purchaser represents and warrants that it is an accredited investor as defined in Regulation D promulgated under the Securities Act of 1933.
(c) The Purchaser understands that no federal or state agency has made any finding or determination as to the fairness for investment, nor any recommendation or endorsement, of the Shares.
(e) The Purchaser has been advised that the Shares are no suits, actions, arbitrations, not being registered under the Securities Act of 1933 or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect the relevant state securities laws but are being offered and sold pursuant to exemptions from such laws and that the Transferor’s reliance upon such exemptions is predicated in part on the Purchaser’s ability representations to perform Transferor and CSI as contained herein.
(f) The Purchaser has reviewed with its obligations under own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement, and has and will rely solely on such advisors and not on any statements or representations of CSI, the Transferors or any of their agents. The Purchaser understands that the Purchaser (and not the Transferor or CSI) will be responsible for the Purchaser’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
11.6 (g) The Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment will make no written or other judicial seizure public disclosures regarding the Transferor, CSI, the terms or existence of all the proposed transfer of the Shares to any individual or substantially all organization without the prior written consent of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, Lake Street Solar LLC except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated may be required by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTlaw.
Appears in 1 contract
Sources: Stock Transfer Agreement (Communications Systems Inc)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller thatand in favour of the Vendor that as of the date of this Agreement and as of the Closing Date:
11.1 (a) the Purchaser is duly organized, validly existing and in good standing a Limited Partnership subsisting under the laws of the state State of its formation, or otherwise will be qualified to conduct business Delaware in the state in which the Property is located, United States of America and has all right the necessary corporate authority, power and power capacity to acquire, own the Subject Assets and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and all agreements, transfers, assignments and other documents to consummate be delivered by it pursuant hereto and, subject to the transaction approval of the General Partner’s Board of Directors obtained prior to the expiry of the Purchaser’s Condition Date, will be authorized and have the power and capacity to complete the Transaction and perform its obligations under the documents entered into by it pursuant hereto in respect of the Transaction on the terms and conditions herein contained;
(b) this Agreement and the obligations of the Purchaser hereunder and each of the agreements, transfers, assignments and other documents entered into by the Purchaser pursuant hereto (including, without limitation, the Closing Documents) and the Transaction contemplated herein will, upon approval of the General Partner’s Board of Directors obtained prior to the expiry of the Purchaser’s Condition Date, have been duly and validly authorized by all requisite proceedings of the Purchaser and constitute (or will constitute on Closing, in the case of the Closing Documents) legal, valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with its and their terms;
(c) neither the entering into nor delivery of this Agreement nor the completion by the Purchaser of the Transaction will conflict with or constitute a default under any Applicable Laws, provided that any approvals or consents necessary pursuant to the Competition Act (Canada) are obtained as contemplated by this Agreement; and no approval or consent of any Governmental Authority is required (other than a consent, if any, required pursuant to the Competition Act (Canada)) in connection with the execution and delivery of this Agreement by the Purchaser and has taken all necessary action to authorize the consummation of the Transaction;
(d) the execution, delivery and performance of this Agreement by the terms and conditions Purchaser does not result in the violation of this Agreement.any of the provisions of the constating documents or by-laws of the Purchaser; and
11.3 This Agreement, and (e) the documents to be executed and delivered by Purchaser has not retained the services of any real estate broker or agent in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction transactions contemplated by this Agreement; (iv) Seller has specifically bargained for . This Section 6.2 shall survive the assumption by Purchaser of all responsibility Closing, subject to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the informationSection 6.3 and, if anyapplicable, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTSection 6.6.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)
Purchaser’s Representations. The Purchaser hereby represents and warrants to Seller the Vendor that:
11.1 Purchaser (a) it is a corporation duly organized, formed and validly existing and in good standing subsisting under the laws of the state jurisdiction of its formation, incorporation or otherwise will be qualified to conduct business in the state in which the Property is located, formation and has all right and the requisite power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate complete the transaction contemplated by this Agreement and Transaction;
(b) it has taken all necessary action corporate or other acts to authorize the execution, delivery and performance of the terms and conditions by it of this Agreement.;
11.3 This Agreement, and (c) neither the documents to be executed and delivered by Purchaser in connection with the consummation of this Agreement, are and shall be valid and binding in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser execution of this Agreement are not precluded or proscribed by, and nor its performance by the Purchaser will not, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, of any term or provision or constitute a material default under any agreementindenture, mortgage, contract, undertaking deed of trust or any other instrument or document agreement to which the Purchaser is a party or by which Purchaser it is bound or to which breach could materially affect the ability of the Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.hereunder;
11.6 Purchaser has not (d) to the knowledge of Purchaser, except for: (i) made a general assignment for the benefit of creditorsCourt Approval; and (ii) filed the Licence Transfers and any voluntary petition consents, approvals or waivers that are required in bankruptcy or, to connection with the best of Purchaser’s knowledge, suffered the filing assignment of an involuntary petition Assumed Contract; the execution, delivery and performance of this Agreement by it does not and will not require any consent, approval, authorization or other order of, action by, filing with or notification to, any Governmental Authority, except where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not prevent or materially delay the consummation by the Purchaser of this Transaction;
(e) subject to Court Approval being obtained, this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of the Purchaser and is enforceable against the Purchaser in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar Applicable Laws relating to creditors’ rights generally and subject to general principles of equity;
(f) on Closing, the Purchaser shall not be a non-resident of Canada for the purposes of the Income Tax Act (Canada);
(g) the Vendor will not be liable for any brokerage commission, finder’s fee or other similar payment in connection with the Transaction because of any action taken by, or agreement or understanding reached by, the Purchaser’s creditors; ;
(iiih) to the best knowledge of the Purchaser’s knowledge, suffered the appointment Purchaser meets all or, by Closing will meet all, eligibility requirements of Governmental Authorities to purchase and accept a receiver transfer of the Assets, including without limiting the generality of the foregoing, the eligibility requirements of the BCER;
(i) with respect to the GST imposed under the GST Legislation, by Closing the Purchaser shall be registered under the GST Legislation and will continue to be registered at the Closing Date in accordance with the provisions of the GST Legislation and, upon registration under the GST Legislation, the Purchaser shall provide its GST registration number to the Vendor;
(j) the Purchaser is a WTO investor within the meaning of the Investment Canada Act (Canada);
(k) the Purchaser will have the financial resources necessary to pay, as and when due from the Purchaser, the Purchase Price, the Cure Costs, the Transfer Taxes, the Interim Financing Participation, its legal fees and expenses, registration costs and any other amounts payable by the Purchaser pursuant hereto; and
(l) the Purchaser has the financial resources necessary to post or satisfy all necessary security, deposits, letters of credit, guarantees or other financial assurances necessary to take possession of all or substantially all of Purchaser’s assets; (iv) the Assets and to satisfy the best of Purchaser’s knowledge, suffered security required by the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generallyAssumed Contracts.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Gryphon Digital Mining, Inc.)
Purchaser’s Representations. 8.1 Purchaser hereby represents represents, warrants and warrants covenants to Seller and with Vendor that:
11.1 (a) Purchaser is a general partnership duly organized, organized and validly existing and in good standing under the laws of the state its jurisdiction of its formation, or otherwise will be qualified and duly registered and authorized to conduct carry on business in the state jurisdiction(s) in which the Property is Lands are located, and ;
(b) Purchaser has all right and requisite power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into this Agreement and to consummate purchase and pay for the transaction contemplated by Assets on the terms described herein and to perform its other obligations under this Agreement;
(c) the execution and delivery of this Agreement and has taken all necessary action each and every agreement or document to authorize be executed and delivered hereunder and the execution, delivery and performance consummation of the terms transactions contemplated herein will not violate, nor be in conflict with, any provision of any agreement or instrument to which Purchaser is a party or is bound, or any judgement, decree, order, statute, rule or regulation applicable to Purchaser or of the constating documents or by-laws of Purchaser;
(d) this Agreement has been duly executed and conditions of this Agreement.
11.3 This Agreement, delivered by Purchaser and the all documents required hereunder to be executed and delivered by Purchaser in connection with the consummation of shall have been duly executed and delivered and this AgreementAgreement does, are and shall be such documents will, constitute legal, valid and binding obligations of Purchaser enforceable in accordance with their respective terms and conditions, except as such enforceability may be limited terms;
(e) Alberta Energy & Utilities Board (“AEUB”) will not reject the transfer by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity).
11.4 The execution, delivery and performance by Purchaser of this Agreement are not precluded or proscribed by, and will not, the Vendor to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subject.
11.5 There are no suits, actions, arbitrations, or legal, administrative or other proceedings pending against Purchaser which would impair or otherwise materially adversely affect Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come due; or (vi) made an offer of settlement, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoingwell licences held by Vendor pertaining to the Assets due to the Vendor failing the AEUB’s Licences Liability Rating criteria in effect.
(f) Purchaser has not incurred any obligation or liability, Purchaser specifically acknowledges that Seller does not represent contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which Vendor shall have any way warrant the accuracy of any marketing information obligation or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaserliability; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTg) Purchaser is not a "non-Canadian person" within the meaning of the Investment Canada Act.
Appears in 1 contract
Sources: Petroleum, Natural Gas and Related Rights Conveyance (Nation Energy Inc)
Purchaser’s Representations. (a) Purchaser hereby represents and warrants to Seller as of the Effective Date and as of Closing that:
11.1 (i) Purchaser is a limited liability company duly organized, validly existing formed and in good standing under the laws of the state Cayman Islands and is not subject to any law, order, decree, restriction or agreement which prohibits or would be violated by this Agreement or the consummation of its formation, or otherwise will be qualified to conduct business in the state in which the Property is located, and has all right and power to acquire, own and operate the Propertytransactions contemplated hereby.
11.2 (ii) Purchaser has the legal capacity, right full power and authority to enter into and perform this Agreement in accordance with its terms and this Agreement and all documents executed by Purchaser which are to consummate the transaction contemplated by this Agreement and has taken all necessary action be delivered to authorize the execution, delivery and performance of the terms and conditions of this Agreement.
11.3 This AgreementSeller at Closing are, and at the documents to be time of Closing will be, duly authorized, executed and delivered by Purchaser in connection with and are, and at the consummation time of this AgreementClosing will be the legal, are and shall be valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by general principles of equity (whether applied in a proceeding at law or in equity)terms.
11.4 The (iii) Neither the execution, delivery and or performance by Purchaser of this Agreement are not precluded nor the consummation of the transactions contemplated hereby is prohibited, or proscribed byrequires Purchaser to obtain any consent, and will notauthorization, to the best of Purchaser’s knowledgeapproval or registration under, (i) violate any provision of any existing law, statute, rule or rule, regulation, judgment, order, decreewrit, writ injunction or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or a material default under any agreement, mortgage, contract, undertaking or other instrument or document to decree which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectbinding upon Purchaser.
11.5 (iv) There are no suitsjudgments, orders or decrees of any kind against Purchaser unpaid and unsatisfied of record, nor any actions, arbitrations, or legal, administrative suits or other legal or administrative proceedings pending or, to Purchaser’s Actual Knowledge, threatened against Purchaser Purchaser, which would impair have a material adverse effect on Purchaser, its financial condition or otherwise materially adversely affect Purchaser’s its ability to perform its obligations under consummate the transactions contemplated by this Agreement.
11.6 (v) Purchaser has is not acquiring the Property with the assets of an employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), or, if plan assets will be used to acquire the Property, Purchaser will deliver to Seller at Closing a certificate containing such factual representations as shall permit Seller and its counsel to conclude that no prohibited transaction would result from the consummation of the transactions contemplated by this Agreement. Purchaser is not a “party in interest” within the meaning of Section 3(3) of ERISA with respect to any beneficial owner of Seller.
(vi) Purchaser is not now nor shall it be at any time prior to or at the Closing an individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity (collectively, a “Person”) with whom a United States citizen, entity organized under the laws of the United States or its territories or entity having its principal place of business within the United States or any of its territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) (including those executive orders and lists published by OFAC with respect to Persons that have been designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC “Specially Designated Nationals and Blocked Persons”) or otherwise. Neither Purchaser nor any Person who owns an interest in Purchaser (collectively, a “Purchaser Party”) is now nor shall be at any time prior to or at the Closing a Person with whom a U.S. Person, including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(vii) Neither Purchaser nor any Purchaser Party, nor any Person providing funds to Purchaser: (i) made a general assignment for is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the benefit United States would be predicate crimes to money laundering, or any violation of creditorsany Anti-Money Laundering Laws (as hereinafter defined); (ii) filed has been assessed civil or criminal penalties under any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditorsAnti-Money Laundering Laws; or (iii) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws. For purposes of this Section 15(a), the term “Anti-Money Laundering Laws” shall mean laws, regulations and sanctions, state and federal, criminal and civil, that: (w) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (x) limit commercial transactions with designated countries or individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the best interests of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assetsUnited States; (ivy) to require identification and documentation of the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) admitted in writing Purchaser’s inability to pay Purchaser’s debts as they come dueparties with whom a Financial Institution conducts business; or (viz) made an offer are designed to disrupt the flow of settlementfunds to terrorist organizations. Such laws, extension or composition regulations and sanctions shall be deemed to Purchaser’s creditors generallyinclude the USA PATRIOT Act of 2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1 et. seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (iviii) Purchaser is expressly purchasing the Property (in compliance with any and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations applicable provisions of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTPatriot Act.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser’s Representations. Purchaser hereby represents and warrants to Seller thatas of the Effective Date and as of the Closing Date, as follows:
11.1 5.3.1 Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formationformation and is, or otherwise will be as of Closing, qualified to conduct do business and in good standing in the state in which the Property is located, and has all right and with full power to acquire, own and operate the Property.
11.2 Purchaser has the legal capacity, right and authority to enter into and execute this Agreement Contract and to consummate the transaction transactions contemplated by this Agreement and hereby. Purchaser has taken received all requisite entity approvals necessary action to authorize for the execution, delivery and performance of the terms and conditions execution of this Agreement.
11.3 This Agreement, Contract and the documents to be executed and delivered by Purchaser in connection with the consummation of the transactions contemplated hereby and this AgreementContract constitutes the legal, are and shall be valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with their respective terms and conditionsits terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other similar laws affecting debtors' and creditors’ ' rights generally and by general principles of equity (whether applied in a proceeding at law or in equity)equitable principles.
11.4 The execution5.3.2 To Purchaser's knowledge, delivery and neither the execution of this Contract nor the performance by Purchaser of this Agreement are not precluded or proscribed byits obligations hereunder will violate, and will notbe in conflict with, to the best of Purchaser’s knowledge, (i) violate any provision of any existing law, statute, rule or order, decree, writ or injunction of any court, governmental department, commission, board, bureau, agency or instrumentality, or (ii) result in a material breach of, or constitute (with due notice or lapse of time, or both) a material default under any agreement, mortgage, contract, undertaking or other instrument or document to which Purchaser is a party or by which Purchaser is bound or to which Purchaser is subjectmaterial Applicable Law.
11.5 There are no suits, actions, arbitrations, or legal, administrative or 5.3.3 Neither Purchaser nor any party controlling Purchaser nor to Purchaser's knowledge any other proceedings pending against Purchaser which would impair or otherwise materially adversely affect beneficial owner of Purchaser’s ability to perform its obligations under this Agreement.
11.6 Purchaser has not : (i) is listed on OFAC, the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable orders; (ii) is a person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; (iii) to Purchaser's knowledge, is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Order, or (iv) is a Forbidden entity or has engaged in any dealings or transactions, or is otherwise associated, with any Forbidden Entity. The foregoing does not apply to any person or entity to the extent that such person's interest in Seller is through a US publicly traded entity.
5.3.4 It is expressly acknowledged by Purchaser that no financing for this transaction shall be provided by Seller, and this transaction is not subject to any financing contingency.
5.3.5 Purchaser is solvent, has not made a general assignment for the benefit of its creditors; (ii) filed any voluntary petition in bankruptcy or, to the best of Purchaser’s knowledge, suffered the filing of an involuntary petition by Purchaser’s creditors; (iii) to the best of Purchaser’s knowledge, suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets; (iv) to the best of Purchaser’s knowledge, suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets; (v) and has not admitted in writing Purchaser’s its inability to pay Purchaser’s its debts as they come become due; , nor has Purchaser filed, nor does it contemplate the filing of, any bankruptcy, reorganization, arrangement, insolvency or (vi) made an offer of settlementliquidation proceedings, extension or composition to Purchaser’s creditors generally.
11.7 Purchaser does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement: (i) Purchaser is expressly purchasing the Property (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same; (iii) Seller has provided Purchaser sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Purchaser deems necessary or appropriate with respect to the Property and the transaction contemplated by this Agreement; (iv) Seller has specifically bargained for the assumption by Purchaser of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) Purchaser has undertaken or will undertake all such inspections and investigations of the Property as Purchaser deems necessary or appropriate with respect to the Property and the suitability of the Property for Purchaser’s intended use, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, Purchaser has approved or will approve the Property in all respects, and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; and (vi) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Purchaser (whether prepared by or for Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect proceeding for the relief of all debtors in general, nor has any such proceeding been instituted by or against Purchaser, nor is any part of the Property as an inducement to Purchaser to enter into this Agreement and thereafter to purchase the Property or for any other purpose. Without limiting the generality of any of the foregoing, Purchaser specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Property or the information, if any, provided by Seller such proceeding to Purchaser; and
11.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, PROPERTY VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT's knowledge threatened or contemplated.
Appears in 1 contract
Sources: Contract of Sale and Purchase (Plymouth Industrial REIT, Inc.)