REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows: (a) Each of the Company, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby. (b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets. (c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity). (d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby. (e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person. (f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Limited Liability Company Interest Purchase Agreement (Fomo Corp.), Limited Liability Company Interest Purchase Agreement (Fomo Corp.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyer, the Company as of the date hereof follows (as to such Seller and not as of the Closing Date, as follows:to any other Seller):
(a) Each of the Company, Kristara Seller that is not an individual is duly organized and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State its ju- risdiction of New Jersey and that each organization. Each Seller has the all requisite limited liability company power pow- er and authority to carry on the business in which it is engaged execute and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, Registration Rights Agreement and to perform its obligations hereunder and to consummate the transaction transactions contemplated herebyhere- by and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by each Seller and, assuming the due execution hereof and thereof by the Com- pany, this Agreement and the Registration Rights Agreement con- stitute the legal, valid and binding obligation of each Seller enforceable in accordance with the terms hereof and thereof.
(b) The Shares listed on Schedule 1 constitute all of the shares of Common Stock owned of record and/or ben- eficially by each Seller (other than shares of Common Stock underlying the Company's employee stock options or restricted stock agreements with the Company or held in an employee bene- fit plan of the Company) and/or the affiliates of such Seller (other than the Company or any subsidiary of the Company, or any employee benefit plan thereof (or related employee benefit trust)) (the "Seller Affiliates"). Upon consummation of the Company Repurchase at the Closing, as contemplated by this Agreement, good title to the Repurchased Shares will be de- livered to the Company, free and clear of any Encumbrances.
(c) Neither the execution and delivery by such Seller of, and the performance by such Seller Sellers of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered nor the consummation by the Sellers at of the Closing pursuant to this Agreement (collectivelytransactions contemplated hereby will violate or con- flict with, or constitute a default under, or result in the “Seller Documents”) and creation or imposition of any Encumbrance upon any of the consummation by as- sets or properties of such Seller of the transaction contemplated hereby under (i) have been in the case of any Seller that is not an individual, the certificate of incorpora- tion, bylaws, trust agreement or will be duly authorized and approved by all necessary action other organizational documents of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulationagreement, judgment, order or decree other obligation to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, party or by which such Seller is bound, or (iii) assuming the representation by the Company in Section 5(c) is bound correct, any law or regulation ap- plicable to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain its assets or prohibit (properties, except for such violations, conflicts, breaches, defaults or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, Encumbrances under clauses (ii) have good and marketable title to the Interest, or (iii) have which (x) would not prevent, mate- rially delay or materially adversely affect the full right, title, power and authority to validly sell, assign, transfer and convey consummation of the Interest to Buyer, and transactions contemplated by this Agreement or (ivy) have not entered into any agreement to sell, hypothecate will be waived or otherwise dispose released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of the Interest to any other personthis Agreement.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Skaggs Lennie S), Stock Purchase Agreement (American Stores Co /New/)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each SellerSellers, respectively to induce Buyers to enter into this Agreement and for its own behalf, represents to complete the sale and warrants to Buyer, as purchase of the date hereof Cel Art hereunder, represent, warrant and as of the Closing Date, covenant to Buyers as follows:
(a) Each Sellers have no knowledge of, and have received no written notice from, any governmental authority asserting any violation of any federal, state, county or municipal laws, ordinances, codes, orders, regulations or requirements affecting any portion of the CompanyCel Art. There is no action, Kristara and B▇▇▇▇▇ is a limited liability company duly organizedsuit or proceeding pending or, validly existing and in good standing under to the laws knowledge of Sellers, threatened against or affecting Seller or the Cel Art or any portion thereof relating to or arising out of the State ownership of New Jersey and that each has the requisite limited liability company power and authority to carry on the business Cel Art, in which it is engaged and to own its assetsany court or before or by any federal, to executestate, deliver and perform its obligations under this Agreement and the Seller Documentscounty or municipal department, and to consummate the transaction contemplated herebycommission, board, bureau or agency or other governmental instrumentality.
(b) The execution Sellers hold clear title to the Cel Art. Sellers are duly existing persons and delivery by such Seller of, have full legal right and the performance by such Seller of its obligations under all requisite power and authority to enter into this Agreement and any other agreementsto perform its obligations hereunder. The execution, statements, certificates, instruments or other documents to be delivery and performance of this Agreement by Sellers and the consummation by Sellers of the transaction contemplated hereby have been duly and effectively authorized by the Sellers. This Agreement has been duly executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectivelyand constitutes a valid and legally binding obligation of Sellers, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict enforceable against Sellers in accordance with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assetsits terms.
(c) This Agreement constitutes and each Sellers have entered into no agreements of sale, options, or any other claims to possession affecting the Cel Art. To the best of Sellers' knowledge, no other Seller Documents will constitute party has any right or option to acquire the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization Cel Art or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity)any portion thereof.
(d) No representation, statement or warranty by Sellers contained in this Agreement contains or will contain any untrue statements or omits or will omit a material fact necessary to make the statement of fact therein recited not misleading. If, after Sellers' execution hereof, any event occurs or condition exists which renders any of the representations contained herein untrue or misleading, Sellers shall promptly notify Buyers.
(e) To the best of such Seller’s Sellers' knowledge, there are no actions, suits, proceedings, claims or demands of any kind, proceedings pending or threatened (collectivelyby or against Sellers in bankruptcy, “Claims”), against insolvency or affecting such Seller reorganization in any state or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebyfederal court.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Interactive Brand Development Inc.), Agreement of Sale and Purchase (Interactive Brand Development Inc.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller hereby represents and warrants to Buyer, Buyer that the statements contained in this Section 2.1 are correct and complete as of the date hereof of this Agreement and shall be correct and complete as of the Closing Date and as of the Effective Date (as though made at the Closing Date, Date and Effective Date and as follows:if the Closing Date and Effective Date were substituted for the date of this Agreement throughout this Section 2.1).
(a) Each of the CompanyIf such Seller is an entity, Kristara and B▇▇▇▇▇ such Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey its organization and that each has the requisite limited liability company power and authority to carry on the business in any jurisdiction in which it is engaged and the failure to own be qualified would impair its assets, ability to execute, deliver and perform its obligations under enter into this Agreement and or adversely affect the Seller Documents, and to consummate the transaction contemplated herebyenforceability of this Agreement.
(b) The Such Seller has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder.
(c) Neither the execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and nor the consummation by such Seller of the transaction transactions contemplated hereby will (i) have been violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or will be duly authorized and approved by all necessary action other restriction of any government, governmental agency or court to which such Seller is subject, or any provision of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the ’s articles of organization or incorporation, operating agreement of such Seller or any Lawbylaws, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (ivii) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing conflict with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, of or constitute a default under (upon the giving of notice or lapse of time or both), result in the acceleration of, or create in any party the right to accelerate, terminate, modify or cancel, or require any notice under, any agreement, contract, instrumentlease, commitment license, instrument or other arrangement to which such Seller or the Company is a party, party or by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement Purchased Membership Interest of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity)subject.
(d) To Such Seller has no liability or other obligation to pay any fees or commissions to any broker, finder or agent with respect to the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or transactions contemplated by this Agreement for which the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebyBuyer could become liable.
(e) the LED Members (i) are Such Seller holds of record and is the sole record holders and beneficial owners owner of the InterestPurchased Membership Interest of such Seller, as described on Schedule A to this Agreement, which Purchased Membership Interest is a validly issued, fully paid and non-assessable Membership Interest in Val-E, and is free and clear of any restrictions on transfer (ii) have other than any restrictions under federal or state securities laws and the Operating Agreement), liens, claims, encumbrances, security interests, options, warrants, purchase rights, rights of first refusal or other demands. Such Seller is not a party to any option, warrant, purchase right, right of first refusal or other contract or commitment that could require Seller to sell, transfer or otherwise dispose of such Purchased Membership Interest (other than this Agreement and the Operating Agreement). Such Seller has good and marketable title to such Purchased Membership Interest, such Purchased Membership Interest represents such Seller’s entire interest and investment in Val-E and such Purchased Membership Interest represents the Interestpercentage ownership of Val-E stated on Schedule A to this Agreement.
(f) Such Seller purchased such Seller’s Purchased Membership Interest for the amount stated on Schedule A to this Agreement, which amount has been paid in full to Val-E and no portion of which is unpaid or outstanding by promissory note or otherwise.
(g) Other than its ordinary obligations as a member of Val-E under the Operating Agreement, such Seller has no obligations or liabilities owed to Val-E or any other person for which Buyer would or will become responsible following the effective date of the transfer of the Purchased Membership Interests.
(h) Such Seller (i) is an “accredited investor” as defined in Regulation D of the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”) for purposes of the acquisition of the Exchanged Shares, (ii) is acquiring the Exchanged Shares solely for such Seller’s own account, for investment purposes only and, with no present intention of distributing, selling or otherwise disposing of the Exchanged Shares in connection with a distribution as such term is understood under the Act, (iii) have understands that the full rightExchanged Shares may not be sold, titletransferred or otherwise disposed of without registration under the Act and applicable state securities laws, power and authority to validly sell, assign, transfer and convey or the Interest to Buyeravailability of exemptions thereunder, and (iv) have not entered into any agreement agrees that Buyer may place restrictive legends on certificates representing the Exchanged Shares to sell, hypothecate evidence the restrictions on transfer thereof imposed by federal and state securities laws and may place a stop transfer order in its stock records or otherwise dispose of with its stock transfer agent and registrar with respect to the Interest to any other personExchanged Shares.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Husker Ag LLC), Membership Interest Purchase Agreement (US BioEnergy CORP)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, of the Sellers represents and warrants as to Buyer, as itself to each of the date hereof and as of the Closing Date, as followsPurchasers that:
(a) Each of the Company, Kristara The Seller is an entity duly organised and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State Grand Duchy of New Jersey Luxembourg and that each has all the requisite limited liability company power and authority to carry on the business in which it is engaged authority, and to own its assetshas taken all actions necessary, to execute, deliver and perform its obligations under this Agreement. This Agreement is a legal, valid and binding obligation of Seller, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganisation, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. The sale and delivery of the Shares by the Seller Documentsunder this Agreement, and to consummate the transaction contemplated hereby.
(b) The execution and delivery compliance by such the Seller with all of the provisions of, and the performance by such the Seller of its obligations under under, this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at consummation of the Closing pursuant to transactions contemplated in this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) the constitutive documents of the Seller, (ii) any contractindenture, instrumentmortgage, commitment deed of trust, loan agreement, lease or arrangement other instrument to which such the Seller or the Company is a party, party or by which such the Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are its properties is subject, and in each case, the breach or violation of which or default under which would be reasonably expected to have a material adverse effect on the ability of the Seller to comply with its obligations hereunder, or (viiii) do not and will not result in any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the imposition Seller or any of its subsidiaries or any of their properties, or any stock exchange authority or self-regulatory organisation (each, a "Governmental Authority"); and, other than the filing of a lien on Form 4 and a Schedule 13D under the United States Securities Exchange Act of 1934, as amended (the "Exchange Act") (a draft of each of which is attached hereto as Exhibits B and C, respectively) by the Seller or an affiliate thereof, no consent, approval, authorisation, order, registration, clearance or qualification or notification of, with or to any Governmental Authority is required for the sale and delivery of such Seller’s or the Company’s assets.Shares by the Seller under this Agreement;
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(db) To the best of such the Seller’s 's knowledge following a review of the publicly available filings the Company has made with the United States Securities and Exchange Commission (the "Commission"), the Company has 75,308,040 Shares issued and outstanding;
(c) Immediately prior to delivery of the Shares to the Purchasers, the Seller is the true and lawful beneficial and record owner of the Shares and has and will have good and valid title to the Shares, free and clear of all liens, encumbrances, equities or claims, and the Purchasers, when the Shares are delivered as provided in this Agreement, will be entitled to all the rights of a shareholder of the Company conferred by the Articles of Incorporation and by-laws of the Company;
(d) There are no legal or governmental proceedings pending to which the Seller is a party or of which any property of the Seller is the subject which, if determined adversely to the Seller, would individually or in the aggregate have a material adverse effect on the Seller's ability to perform its obligations under this Agreement, and, to the best of the Seller's knowledge, there no such proceedings are no actions, suits, proceedings, claims threatened or demands of any kind, pending contemplated by Governmental Authorities or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.others; and
(e) Neither the LED Members Seller nor any person (iincluding without limitation Anglo American plc) are acting on its behalf has offered or sold any Shares by means of any general solicitation or general advertising within the sole record holders and beneficial owners meaning of Rule 502(c) under the InterestUnited States Securities Act of 1933, as amended (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person"Securities Act").
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Purchase Agreement (Anglo American PLC), Purchase Agreement (Anglo American PLC)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers hereby jointly and for its own behalf, represents severally represent and warrants warrant to Buyer, Purchaser as of the date hereof and as of the Closing Date, as followsthat:
(a) Each Sellers are the sole beneficial owners of the CompanySellers' Shares, Kristara in the proportionate interests set out in the recitals hereto, free and B▇▇▇▇▇ clear of all liens, charges, mortgages, security interests, adverse claims, pledges, encumbrances, demands or rights of others whatsoever and have full right, power and authority to sell the Seller's Shares in accordance with the provisions hereof;
(b) the recitals hereto are true and correct in fact and in substance;
(c) neither the execution and delivery of this Agreement by Sellers, nor the performance of Sellers' obligations hereunder will be in conflict with, or result in the breach of, or constitute a default by any of the Sellers under any document of any kind to which any of the Sellers is a limited liability company duly organizedparty, validly existing or to the best of the knowledge, information and belief of each of the Sellers, under any judgment, decree, order, law, statute, rule or regulation applicable to Sellers;
(d) each of the Sellers is in existence and in good standing under (if a corporation) and has the laws capacity to execute and deliver this Agreement;
(e) this Agreement has been duly executed and delivered by each of the State of New Jersey Sellers and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other all documents required hereunder to be executed and delivered by the Sellers at shall have been duly executed and delivered by the Sellers and this Agreement does and such documents and instruments shall, constitute legal, valid and binding obligations of Sellers enforceable in accordance with their respective terms;
(f) all necessary corporate action has been taken or will be taken prior to Closing by any corporate Seller to duly authorize the execution and delivery of this Agreement and all closing and other documentation and acts contemplated or required herein;
(g) there is no litigation, proceeding or governmental investigation in progress, pending, threatened or contemplated, relating to the Shares owned by the Sellers and there is no outstanding execution, judgment, decree, injunction, rule or order of any court or governmental body affecting the Shares;
(h) endorsement and delivery of certificates representing the Shares for exchange pursuant to this Agreement (collectively, by Sellers shall constitute a representation and warranty to Purchaser that the “Seller Documents”) representations and warranties made by Sellers in this Agreement are true and correct at the consummation by such Seller Time of Closing as if they had been made at the transaction contemplated hereby Time of Closing;
(i) have Worldwide has been duly incorporated and is validly subsisting under the laws of the Province of Ontario;
(j) Worldwide has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which it carries on business and holds all material licenses, registrations and qualifications in all jurisdictions in which it carries on business in order to carry on its business as now conducted and all such licenses, registrations or qualifications are valid and existing and in good standing;
(k) no person, firm or corporation has any agreement, option, warrant or any right capable of becoming an agreement for the purchase, subscription or issuance of any of the unissued shares in the capital of Worldwide;
(l) Worldwide is not subject to any judgment, order, writ, injunction or decree of any court or governmental body which would prevent the carrying out of this Agreement or consummation of the transactions herein contemplated;
(m) neither the execution and delivery of this Agreement by Sellers, nor the performance of Sellers' obligations hereunder, will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or in conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a the breach of, or constitute a default under, by Worldwide under its constating documents or any contract, instrument, commitment or arrangement document of any kind to which such Seller Worldwide is a party or by which it is bound, or under any judgment, decree, order, law, statute, rule or regulation applicable to Worldwide;
(n) there is no litigation which is material to the business or financial condition of Worldwide, (for the purposes of this Agreement, "material" means any claim or item amounting to or valued at $5,000 or more), there is no suit, action, litigation, arbitration proceeding or governmental proceeding, including appeals and applications for review, in progress, pending or threatened in writing, against or relating to Worldwide or its properties or business which if determined adversely to Worldwide might materially and adversely affect the properties, business, or the Company financial condition of Worldwide;
(o) Worldwide has no direct or indirect subsidiaries and does not own any securities of any other person;
(p) Worldwide has been and is a party, in compliance with all applicable laws and regulations and orders and decisions rendered by which such Seller any regulatory agency relating to the protection of the environment or the Company use, storage, or disposal or transport of toxic or hazardous wastes or substances. There are no orders or directions relating to environmental matters requiring any work or capital expenditures with respect to the business or assets of Worldwide nor has Worldwide received notice of same. Worldwide has not received any notice that it is bound potentially responsible for a cleanup or to which corrective action under any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.environmental laws;
(cq) This Agreement constitutes all books and each records of the other Seller Documents will constitute the legalWorldwide, valid and binding agreement of such Seller enforceable against such Seller financial, corporate or otherwise, have been kept in accordance with good bookkeeping practices, are true and correct in all respects and are in Worldwide's possession or under its termscontrol;
(r) Worldwide has conducted and is conducting its business in compliance with all applicable laws, except rules and regulations of each jurisdiction in which any material portion of its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which the failure to be so licensed, registered or qualified would have a material adverse effect on the business of Worldwide, and all such licenses, registrations or qualifications are valid and existing and in good standing and none contain any term, provision, condition or limitation which has a material adverse effect on the operation of the business of Worldwide, as such enforceability may now carried on or proposed to be limited carried on;
(s) Worldwide is not a party to or bound by bankruptcyany collective bargaining agreement with any labour union or association. There are no discussions, moratoriumnegotiations, insolvency, reorganization demands or other similar Laws affecting proposals that are pending or limiting the enforcement of creditors’ rights generally have been conducted or made with or by general principles any labour union or association, Worldwide is not presently the subject of equity (regardless any organization efforts on the part of whether such enforceability is considered in any labour organization seeking to represent any employees of Worldwide and there are not pending or threatened any labour disputes, strikes or work stoppages that may have a proceeding at Law material adverse effect upon the continued business or in equity).operation of Worldwide;
(dt) To Worldwide has not declared or paid any dividends or made any distribution on its shares to the best date hereof;
(u) all material national, state, provincial, local and other taxes, including without limitation, income taxes, corporate franchise taxes, and sales and ad valorem taxes. due and payable by Worldwide on or before the date of this Agreement have been paid, and Worldwide has filed all tax returns and reports required to be filed by it with all such taxing authorities. No assessments of deficiencies have been made against Worldwide and no extensions of time are in effect for the assessment of deficiencies;
(v) all licenses, franchises, permits, easements, certificates, consents, rights and privileges material to the conduct of the business of Worldwide or, to the knowledge of any of the Sellers, necessary for the lawful conduct of such Seller’s knowledgebusiness, pursuant to applicable statutes, laws, ordinances, rules and regulations of governmental bodies, agencies and other authorities having jurisdiction over Worldwide, or any part of its operations, are in full force and effect, there are no actions, suits, proceedings, claims violations or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders claimed violations thereof and beneficial owners of the Interest, (ii) copies thereof have good and marketable title heretofore been furnished to the Interest, (iii) have Purchaser or will be finished to the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other personPurchaser.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 2 contracts
Sources: Stock Exchange Agreement (Worldwide Data Inc), Stock Exchange Agreement (Worldwide Data Inc)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:
(a) Each of the Company, Kristara and B▇▇▇▇▇ Joust Group is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each Maryland. Joust Group has the requisite limited liability company power and authority to carry on the business in which it is engaged and engaged, to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Maryland. The Company has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, including, without limitation, the Aircraft.
(c) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under under, this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles Articles of organization Organization or operating agreement Operating Agreement of such Seller Joust Group or the Company or any Lawlaw, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien Lien on any of such Seller’s or the Company’s assets.
(cd) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law law or in equity).
(de) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(ef) the LED Members Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ (i) are is the sole record holders holder and beneficial owners owner of the ▇▇▇▇▇▇ ▇▇▇▇▇ Interest, free and clear of all Liens, (ii) have has good and marketable title to the ▇▇▇▇▇▇ ▇▇▇▇▇ Interest, (iii) have has the full right, title, power and authority to validly sell, assign, transfer and convey the ▇▇▇▇▇▇ ▇▇▇▇▇ Interest to Buyer, and (iv) have has not entered into any agreement to sell, hypothecate or otherwise dispose of the ▇▇▇▇▇▇ ▇▇▇▇▇ Interest to any other personPerson.
(fg) Joust Group (i) is the sole record holder and beneficial owner of the Joust Group Interest, free and clear of all Liens, (ii) has good and marketable title to the Joust Group Interest, (iii) has the full right, title, power and authority to validly sell, assign, transfer and convey the Joust Group Interest to Buyer, and (iv) has not entered into any agreement to sell, hypothecate or otherwise dispose of the Joust Group Interest to any other Person.
(h) The Company is the sole registered, legal and beneficial owner of, and has good and marketable title to, that certain Dassault Falcon 900B aircraft bearing Manufacturer’s Serial Number 176 and FAA Registration Number N909PM (the “Airframe”), together with (A) three (3) ▇▇▇▇▇▇▇ Model TFE731-5BR-1C engines bearing Manufacturer’s Serial Numbers P101343, P101346 and P101344 installed thereon (collectively, the “Engines”), (B) all components, accessories, avionics, appliances, furnishings, software, appurtenances, parts, loose equipment, and other equipment or property installed thereon, incorporated therein, attached thereto or temporarily removed therefrom to which the Company has title (collectively, the “Parts”), (C) all maintenance, flight and technical logs, records, manuals, checklists, catalogs, diagrams, minimum equipment lists, and other records and data related to the Airframe, the Engines and/or the Parts which are in the Company’s possession or control (collectively, the “Aircraft Records”), and (D) all warranties (express or implied), service policies or product agreements with or from manufacturers, service providers or suppliers which are still in effect with respect to the Airframe, the Engines and/or the Parts (all of the foregoing being referred to, collectively, as the “Aircraft”).
(i) There are no Liens on or with respect to the Aircraft.
(j) The Company is not a party to, or otherwise bound by, any agreement currently in effect, including, without limitation, with respect to the Aircraft, except for (i) the Falcon 900B Aircraft Purchase Agreement Number ▇▇▇-▇▇-▇▇▇▇▇ dated May 29, 1998 by and between the Company and Dassault Falcon Jet Corp., (ii) the Management Agreement dated as of July 22, 2011 (the “Management Agreement”) by and among the Company, Joust Capital III, LLC and Buyer, and (iii) the Interchange Agreements each dated as of July 22, 2011 by and between the Company, on the one hand, and each of Joust Capital II, LLC and ▇▇▇▇▇▇▇ Corporation, on the other hand (collectively, the “Existing Agreements”). Each of the Existing Agreements is in full force and effect, and the Company is not in breach or default of any of its obligations under any of the Existing Agreements.
(k) Each of the Sellers is a party to the Amended and Restated Operating Agreement of the Company, dated as of February 27, 2007 (the “Company’s Operating Agreement”). The Company’s Operating Agreement is in full force and effect and has not been amended, modified or terminated since February 27, 2007. Neither of the Sellers is a party to any other agreement currently in effect relating to the operation or management of the Company or the member’s rights and obligations with respect to the Company.
(l) Mr. ▇▇▇▇▇▇ ▇▇▇▇▇, in his capacity as Manager of the Company, consents to the sale of the ▇▇▇▇▇▇ ▇▇▇▇▇ Interest and the Joust Group Interest as contemplated by this Agreement, pursuant to Section 5.1.A. of the Company’s Operating Agreement.
(m) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
(n) Since its formation, the Company has not engaged in or operated any business or otherwise engaged in or undertaken any activities except for the acquisition, ownership, management and operation of the Aircraft, the entry into agreements in connection therewith that are no longer in force or effect, and the entry into the Existing Agreements.
(o) Since its formation, the Company has been and is currently in compliance with all applicable laws and regulations, including, without limitation, all laws and regulations relating to the ownership, management and operation of the Aircraft.
(p) The Company has no obligations or liabilities except for its obligations and liabilities under the Existing Agreements.
(q) The Company maintains the following insurance coverage with respect to the Aircraft in compliance with Section 13 of the Management Agreement:
(i) all-risk hull insurance against any loss, theft or damage to the Aircraft (including, without limitation, extended coverage with respect to any Engine or Parts while removed from the Aircraft); and
(ii) comprehensive aviation liability insurance (including, without limitation, aircraft passenger and property damage coverage) in an amount equal to Five Hundred Million Dollars ($500,000,000) single limit liability coverage, which names Buyer and ▇▇▇▇▇▇▇ Corporation and their respective subsidiaries and related companies, directors, officers, agents and employees as additional insureds (collectively, the “Additional Insureds”).
Appears in 2 contracts
Sources: Limited Liability Company Interest Purchase Agreement, Limited Liability Company Interest Purchase Agreement (Danaher Corp /De/)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each SellerSeller represents, respectively warrants, and for its own behalf, represents and warrants covenants severally but not jointly to Buyer, as of with the date hereof understanding Buyer is relying upon such representations, warranties, and as of the Closing Date, as follows:
covenants that: (a) Each of the Company, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each Seller has the requisite limited liability company power full right, power, and authority to carry on enter into this Agreement and be bound by the business in which it is engaged terms of this Agreement and to own its assetshave obtained the consent of any other person or entity, to execute, deliver other than as required herein; (b) the execution and perform its obligations under delivery of this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and the performance by such each Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectivelyAgreement, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require constitute a breach of or a default under any further other agreement or additional consent, approval or authorization obligation applicable to such Seller; (c) the execution and delivery of this Agreement by Sellers will constitute the valid and binding obligation of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
; (d) To to the best knowledge of such each Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kindinvestigations involving, pending or Company and/or YLK AZ, threatened (collectively, “Claims”), against or involving such Seller, Company, and/or YLK AZ, brought by any Seller, Company, and/or YLK AZ, affecting such Seller Seller, Company, and/or YLK AZ, or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller any of the transaction contemplated hereby.
rights and obligations described therein, at law or in equity or before or by any federal, state, municipal, or other governmental department, commission, board, agency, or instrumentality, domestic or foreign, nor has any such action, suit, proceeding, or investigation been pending during the twenty-four (24) month period preceding the Effective Date; (e) all information supplied by any Seller, Company, and/or YLK AZ or its agents to Buyer is, to such Seller’s knowledge, true, complete, and correct and does not fail to state a material fact necessary to make any of such information misleading; (f) each Seller has free, clear and unencumbered title to its respective Membership Interests; (g) each Seller: (I) is acquiring the LED Members Warrants pursuant to an exemption from registration under the Securities Act of 1934, as amended (ithe “Securities Act”) are the sole record holders and beneficial owners solely for investment with no present intention to distribute any of the Interest, (ii) have good and marketable title securities to any person in violation of the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to BuyerSecurities Act or any other applicable securities laws, and (ivII) have will not entered into any agreement to sell, hypothecate sell or otherwise dispose of any of the Interest to Warrants, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other person.
applicable securities laws; and (fi) Each each Seller has, will, and/or shall ensure compliance of the Sellers consents Closing Deliverables applicable to Buyer becoming a member of such Seller, Company and/or YLK AZ pursuant to Section 5 herein. The Parties agree the Company at warranties provided herein this Section 6 shall expire on the Closingdate that is twelve (12) months following the Closing Date.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyer, as of the date hereof Parent and as of the Closing Date, Acquisition as follows:
(a) Each of the CompanySeller A, Kristara Seller B and B▇▇▇▇▇ Seller C is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey its incorporation.
(b) Each of Seller A, Seller B, Seller C and that each Seller E has the requisite limited liability company all necessary power and authority to carry on the business in which it is engaged execute and to own its assetsdeliver this Agreement, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, hereunder and to consummate the transaction transactions contemplated hereby.
(bc) The execution execution, delivery and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the board of directors of each of Seller A, Seller B, Seller C and Seller E and no other proceedings on the part of any other agreementsof Seller A, statementsSeller B, certificates, instruments Seller C or other documents Seller E are necessary to be authorize this Agreement or to consummate the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “each Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in constitutes a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such each Seller enforceable against such each Seller in accordance with its terms, except as such that the enforceability hereof may be limited by subject to applicable bankruptcy, moratorium, insolvency, reorganization insolvency or other similar Laws laws now or hereinafter in effect affecting or limiting the enforcement of creditors’ ' rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebygenerally.
(e) The execution, delivery and performance by the LED Members Sellers of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) are contravene or conflict with the sole record holders and beneficial owners Certificate of the InterestIncorporation or By-Laws of any of Seller A, Seller B or Seller C or any organizational or governing documents of Seller E; (ii) have good and marketable title contravene or conflict with or constitute a violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon or applicable to the Interestany Seller, any of their respective subsidiaries or any of their respective properties; (iii) have conflict with, or result in the full rightbreach or termination of any provision of or constitute a default (with or without the giving of notice or the lapse of time or both) under, titleor give rise to any right of termination, power and authority cancellation, or loss of any benefit to validly sellwhich any Seller or any of its subsidiaries is entitled under any provision of any agreement, assigncontract, transfer and convey license or other instrument binding upon such Seller, any of its subsidiaries or any of their respective properties, or allow the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose acceleration of the Interest to performance of, any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.obligation of
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller(a) As an inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated hereby, respectively the Sellers, and for its own behalfeach of them, represents jointly and warrants severally, represent and warrant to Buyer, as of BRLI and the date hereof and as of the Closing Date, as followsPurchaser that:
(ai) Each of the Company, Kristara and B▇▇▇▇▇ RBF is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State of New Jersey York and that each has all requisite power and authority to enter into this Agreement, to consummate the requisite limited liability company transactions herein contemplated, and to own, lease and operate its properties. They have no actual knowledge of any impairment of RBF's power and authority to carry on the Health Food business in which as it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated herebynow being conducted.
(bii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the performance, observance and fulfillment by such Seller RBF of all of the terms and conditions hereof on its part to be performed, observed, and fulfilled, (a) have been duly approved and effectively authorized by the Board of Directors and by the sole stockholder of RBF and no other proceedings are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby, (b) do not and will not (either immediately or with the lapse of time, or with notice, or both)
(1) violate any provisions of any judicial or administrative order, award, judgment, decree, statute, rule or regulation applicable to RBF or any of its properties, (2) conflict with or result in a breach of, and constitute a default under, contravene, result in a forfeiture of a right under, or result in the acceleration of payment or performance by such Seller of its obligations under this Agreement and under, any other agreementsnote, statementsbond, certificatesmortgage, instruments indenture, deed, trust, license, lease, agreement, or other documents instrument or obligation to which RBF is a party or by which RBF or any of the Assets may be bound or affected, or (3) result in the creation or imposition of any lien, security interest, charge or other encumbrance against any of the Assets.
(iii) This Agreement has been duly and validly executed and delivered by the Sellers at and upon execution and delivery, will constitute valid, binding and enforceable obligations of the Closing pursuant Sellers subject to bankruptcy, insolvency and similar laws affecting creditors rights generally and subject to general principles of equity. No petition in bankruptcy has been filed by or against either of the Sellers. The Sellers have the right, power, legal capacity and authority to enter into and perform their obligations under this Agreement (collectivelyand with respect to ▇▇▇▇▇▇▇, her obligations under the “Seller Documents”Employment Agreement and the Non-Competition Agreement) and the consummation by such Seller no consent of the transaction contemplated hereby (i) have any third party is necessary with respect thereto which has not been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, obtained.
(iv) do not and will not require the consentThere is no material action, approvaldispute, waiverclaim, clearancelitigation, permitarbitration, license investigation, or authorization ofother proceeding, at law or in equity or by or from, before any filing with, court or any notice to, any Person governmental or administrative body (beyond that which has already been obtainedU.S. or foreign), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectivelyagainst RBF, “Claims”)its business or properties, against or affecting with respect to the transactions contemplated by this Agreement, and RBF is not subject to any adverse judicial, governmental or agency judgment, decree or order, nor do the Sellers know of any basis for any such Seller action, dispute, claim, litigation, arbitration, investigation or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebyother proceeding.
(ev) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to BuyerRBF has made, and (iv) have will continue to make, adequate provision for payment of its obligations, and RBF is not entered into any agreement to sell, hypothecate in default of and will not with the passage of time or otherwise dispose of the Interest to become in default of, any other personcurrent or long-term liabilities (including contingent liabilities), debts or obligations, contractual or otherwise.
(fvi) Each Immediately after the Closing, RBF will cease all operations relating to the Health Food Business and will engage solely in collecting any receivables outstanding on the Closing Date and paying all payables and other obligations which are not expressly assumed hereunder by BRLI and the Purchaser. RBF shall be permitted to maintain a bank account for such purposes. Furthermore, RBF will not engage in any facet of the Sellers consents to Buyer becoming a member Health Food Business anywhere in the continental United States east of the Company at Mississippi River for a period of five (5) years after the Closing.
(vii) Annexed hereto as Schedule H is a copy of the sole governmental license which RBF has obtained in connection with its operation of the Health Food Business. Sellers have no actual knowledge that said license is not in full force and effect.
(viii) Annexed hereto as Schedule I is a schedule listing each and every inspection or other visit to RBF's premises by any federal, state or local governmental organization or authority which is or was related to the Health Food Business including (a) the date of such inspection or visit; (b) the name of the organization or authority; (c) the substance of the communication from the organization or authority after such visit; and (d) the responsive action (if any) taken by RBF.
(ix) Since its inception, the food products sold and/or distributed by RBF in its operation of the Health Food Business have been tested for quality by independent testing entities and RBF has not received any negative reports concerning such tests.
(x) From August 31, 1999 through the date hereof, there has been no material adverse change in RBF's financial condition, operating results or business, and no sale or distribution of assets and no incurrence of liabilities or indebtedness, except in each case, in the ordinary course of its business.
(xi) As soon as possible after the Closing but no later than two (2) weeks after the Closing, RBF will file a duly executed amendment to its certificate of incorporation with the New York Department of State, changing its name from "Right Body Foods, Inc."
(b) The foregoing representations and warranties are made with the knowledge and expectation that the Purchaser is placing complete reliance thereon.
Appears in 1 contract
Sources: Asset Sale/Purchase Agreement (Bio Reference Laboratories Inc)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, of the Sellers represents and warrants to Buyer, as of the date hereof and as of the Closing Date, Buyer as follows:
(a) Each This Agreement and all other agreements and instruments contemplated by this Agreement to which the Sellers are a party or signatory have been duly authorized, executed, and delivered by each of the CompanySellers and constitute the legal, Kristara valid, and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws binding obligations of each of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business Sellers, enforceable in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated herebyaccordance with their terms.
(b) There is no litigation, action, claim, proceeding, or governmental investigation or examination, pending or threatened, against Sellers which may have a materially adverse effect upon the transactions contemplated by this Agreement or upon Sellers' ability to perform their obligations hereunder or under the agreements or instruments contemplated by this Agreement.
(c) Sellers have, and will have as of the Closing Date, good and marketable title to the Stock, free and clear of all liens, claims, demands, restrictions on transferability, reservations, mortgages, security interests, contracts of sale, options, voting agreements, voting trusts, proxies, and all other restrictions, claims, or encumbrances of any type or nature whatsoever.
(d) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do does not and will not require violate the provisions of any further or additional consentnote, approval or authorization of such Sellerindenture, (iii) do not and will not violatemortgage, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing withlease, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, other agreement or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or instrument to which any of such Seller’s the Sellers is a party or is bound, which will not be satisfied or cured prior to the Company’s assets are subjectClosing Date, and (vi) do or does not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands creation of any kindlien, pending charge, restriction, claim, or threatened (collectively, “Claims”), against or affecting such Seller or encumbrance whatsoever upon the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebyStock.
(e) No representation or warranty by Sellers in this Agreement or in any certificate, schedule, exhibit, letter, financial document, or other instrument furnished or to be furnished to Buyer or any of its representatives pursuant hereto or in connection with the LED Members (i) are transactions contemplated hereby, contains or will contain at the sole record holders and beneficial owners time of furnishing any untrue statement of a material fact, or omits or will omit to state at the Interest, (ii) have good and marketable title time of furnishing a material fact necessary in order to make the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have statements contained therein not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other personmisleading.
(f) Each Sellers have agreed to accept as their representative the Sellers' Representative designated in paragraph 22, and agree to be bound by the decisions of the Sellers consents to Buyer becoming a member of the Company at the Closingsuch Sellers' Representative.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers represent and for its own behalf, represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as followswarrant that:
(a) Each This Agreement constitutes the legal, valid, and binding obligation of Sellers, enforceable against them in accordance with these terms. Sellers have the Companyabsolute and unrestricted right, Kristara and B▇▇▇▇▇ is a limited liability company duly organizedpower, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on execute and deliver the business in which it is engaged shares and to own its assets, to execute, deliver and perform its their obligations under this Agreement. Except as set forth herein, neither the execution and delivery of this Agreement by Sellers, nor the consummation or performance of the sale and purchase of the Seller DocumentsShares will give any person the right to prevent, delay or otherwise interfere with the sale and purchase of the Shares pursuant to:
(i) Any legal requirement or order to consummate which Sellers may be subject; or
(ii) Any legally binding agreement, contract, obligation, promise or undertaking (whether written or oral and whether express or implied). Except as set forth herein, Sellers are not and will not be required to obtain any approval, consent, ratification, waiver or other authorization from any person, legal or natural, in connection with the transaction contemplated herebyexecution and delivery of this Agreement or the consummation or performance of the sale and purchaser of the Shares.
(b) The execution Sellers agree not to sell, transfer, hypothecate, borrow against nor in any other way interfere with the Purchaser's right and delivery by such Seller of, and the performance by such Seller of its obligations ability to purchase said Shares under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assetsAgreement.
(c) This Agreement constitutes The Shares have been duly authorized, validly issued, fully paid and each non-assessable. The Shares and the delivery to Purchaser will be free and clear of any liens, encumbrances, or claims of any kind whatsoever. Sellers are the true owners of the other Seller Documents will constitute the legalShares and warrant free, valid clear and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity)marketable title to said shares to Purchaser.
(d) To the best of such Seller’s knowledge, there are Sellers have no actions, suits, proceedings, claims or demands knowledge of any kindrestrictions by contract, pending operation of law or threatened (collectively, “Claims”), against or affecting such Seller otherwise prohibiting this sale or the Company transfer of these Shares into the name of Purchaser, subject only to the Securities Laws governing the sale of securities. Sellers do not believe that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller sale of the transaction contemplated herebyShares from Sellers to Purchaser is required to be registered under the Act.
(e) the LED Members (i) are the sole record holders and beneficial owners of the InterestSellers have no liability or obligation to pay any fees or commissions to any broker, (ii) have good and marketable title finder, or agent with respect to the Interest, (iii) have transactions contemplated by this Agreement for which the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate Sellers could become liable or otherwise dispose of the Interest to any other personobligated.
(f) Each Sellers acknowledge, and agree to act in accordance with, the various TSFP stock resale limitations imposed as a result of the Sellers consents to Buyer becoming a member of the Company at the Closingtheir affiliate status.
Appears in 1 contract
Sources: Stock Purchase Agreement (Temple Summit Financial Projects Inc/Nv)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller3.1 With respect to the sale of the Units, respectively each Seller jointly and for its own behalf, severally represents and warrants to Buyer, as of on the date hereof and as of the Closing Date, as follows:
(a) Each of the CompanySeller is an individual and has full right, Kristara and B▇▇▇▇▇ is a limited liability company duly organizedpower, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver deliver, and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated herebyAgreement.
(b) The execution execution, delivery and delivery performance of this Agreement by such Seller ofhas been authorized by all necessary action on the part of Seller, RadQual and the members of RadQual. This Agreement has been, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectivelySeller hereunder will be, the “Seller Documents”) duly executed and the consummation delivered by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other documents to be executed and delivered by Seller Documents hereunder are, or upon the execution and delivery thereof as contemplated hereby will constitute be, the legal, valid and binding agreement obligations of such Seller Seller, enforceable against such Seller in accordance with its their terms.
d) None of the execution, except as such enforceability may be limited delivery or performance of this Agreement by bankruptcySeller will conflict with, moratoriumresult in a breach of or constitute a default or require the consent of or filing with any third party under, insolvencyany contract, reorganization agreement or other similar Laws affecting or limiting the enforcement of creditors’ rights generally instrument to which Seller is a party or by general principles of equity (regardless of whether such enforceability which he is considered in a proceeding at Law bound or in equity)affected or any law, statute, rule, regulation, ordinance, writ, order or judgment to which Seller is subject or by which he is bound or affected.
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) Seller has, and upon transfer to Purchaser in accordance with the LED Members (i) are the sole record holders and beneficial owners of the Interestterms hereof Purchaser will have, (ii) have good and marketable title to the InterestUnits, free and clear of all mortgages, liens, claims, encumbrances and other security arrangements or restrictions of any kind other than those created by, under or through Purchaser.
f) No consent, approval, authorization, order, registration, or qualification of or with any court or governmental agency or body of the United States or any state or other jurisdiction within the United States is required to be obtained or made by Seller for the consummation of the transactions contemplated by this Agreement, in connection with the purchase or sale of the Units.
g) There is no action, suit, proceeding or investigation pending, or to Seller’s knowledge threatened, against Seller or involving the Units which questions or challenges the validity of this Agreement or any action taken or to be taken by Seller pursuant to this Agreement, and, to Seller’s knowledge, there is no basis for any such action, suit, proceeding or investigation.
3.2 With respect to the acquisition of the Shares, Seller represents and warrants on the date hereof as follows:
a) Seller understands that the Shares have not been registered under the Securities Act of 1933, as amended, or any state securities laws (iiithe “Acts”) in reliance upon exemptions available for limited or non-public offerings. Consequently, this transfer has not been subject to review and comment by the staff of the Securities and Exchange Commission or any other similar state securities agency.
b) Seller had and continues to have an opportunity: (i) to question, and to receive information from executive officers of the full rightPurchaser concerning the Shares, titleand concerning the Purchaser; and (ii) to obtain any and all additional information which Seller deems relevant to make an informed decision, power provided in both cases that the Purchaser possesses such information or can acquire it without unreasonable effort or expense.
c) Seller is not subject to: (i) any outstanding judgments or involved in any litigation or other dispute which, if an adverse decision was reached, would adversely affect his or her financial situation; or (ii) bankruptcy, reorganization, or debt restructuring.
d) Seller did not learn of the Shares and authority was not attracted or induced to validly acquire a direct or indirect investment in the Shares, as a result of any advertisement, article, notice, or other communication published in any newspaper, magazine or similar media, or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to him or her.
e) The information supplied by Seller in the Confidential Investor Questionnaire is accurate and correct in all material respects.
f) Seller is a U.S. person. Or, in the alternative, if Seller is a foreign person, Seller is not acquiring the Shares for the account or benefit of any U.S. person.
g) Seller has no intent of changing his state of principal residence.
h) Seller has sufficient knowledge and experience in business and financial matters in general and is capable of utilizing the available information to evaluate the merits and risks involved in acquiring the Shares.
i) Seller is capable of bearing all the economic risks involved in the acquisition on the Shares.
j) Seller is acquiring the Shares for Seller’s own account, for investment, and with no view to the resale or distribution thereof.
k) Seller understands that Seller must bear the economic risk of the investment in the Shares for an indefinite period because the Shares have not been registered under the Acts and, therefore, are subject to restrictions upon transfer imposed by securities laws and that the Shares may not be sold or otherwise transferred unless they are registered under the Acts or an exemption from such registration is available. Seller understands that Purchaser is not under any obligation, and has no present intention, to file a registration statement under the Acts or to comply with any exemptions under the Acts for purposes of any resales.
l) Seller shall not assign, sell, assignor make any other disposition of any Shares in the absence of an effective registration statement, transfer and convey qualification, or other authorization relating thereto under the Interest Acts, or an opinion of qualified counsel satisfactory to BuyerPurchaser to the effect that the proposed assignment, and (iv) have not entered into any agreement to sellsale, hypothecate or otherwise dispose other disposition of the Interest Shares will neither constitute nor result in any violation of the Acts. Any certificates or other documents which may be issued representing the Shares shall be endorsed with a legend to this effect (in addition to any other personlegends that, in the opinion of Purchaser's counsel, may be required): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS, IN RELIANCE UPON EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO IT THAT AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE.
(fm) Each The representations, warranties and covenants herein contained are made and given by Seller to induce Purchaser to sell and issue the Shares to Seller, and each representation, warranty, and covenant constitutes a material portion of the Sellers consents to Buyer becoming a member consideration therefore.
n) Seller understands and acknowledges that no statements made by the Purchaser should be construed as tax or legal advice and that Seller should seek the advice of the Company at the Closinghis own advisors, accountants, and legal counsels in making his investment decision.
Appears in 1 contract
Sources: Unit Purchase Agreement (International Isotopes Inc)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to BuyerParent and the Offeror as follows and acknowledges that Parent and the Offeror are relying upon such representations and warranties in connection with the entering into of this Agreement and the Pre-Acquisition Agreement, as the making of the date hereof Offer and as the purchase by the Offeror of the Closing Date, as followsSeller’s Shares:
(a) Each the Seller is the beneficial owner of the Company, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under Shares listed on Schedule B beside the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller DocumentsSeller’s name, and to consummate such Shares are the transaction contemplated hereby.only securities of Company owned directly or indirectly, beneficially or otherwise, by the Seller;
(b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under other than as contemplated in this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by in connection with the Sellers at the Closing pursuant to this Agreement (collectivelyOffer, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title right to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey otherwise dispose of and vote, the Interest to BuyerShares beneficially owned as at the date of this Agreement or hereafter acquired by it, and such Shares are, and will be at the time at which the Offeror takes up and pays for such Shares, beneficially owned by the Seller with good and marketable title thereto, free and clear of any and all Encumbrances and are and will at such time be issued and outstanding as fully paid and non-assessable shares in the capital of Company;
(c) no person has any agreement or option, or any right or privilege (whether by Law, pre-emptive, contractual or otherwise) capable of becoming an agreement or option, for the purchase, acquisition or transfer from the Seller of any of the Shares owned by it or any interest therein or right thereto, except the Offeror pursuant hereto;
(d) the execution and delivery of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated by this Agreement have been duly authorized by the board of directors of the Seller, and no other proceedings on the part of the Seller are necessary to authorize this Agreement;
(e) none of the execution and delivery by the Seller of this Agreement or the completion of the transactions contemplated under the terms of this Agreement or the compliance by such Seller with its obligations under the terms of this Agreement will result in a breach of:
(i) the constating documents of the Seller;
(ii) any agreement or instrument to which such Seller is a party or by which such Seller or any of its property or assets are bound, including, any investor rights agreement;
(iii) any judgment, decree, order or award of any court, Governmental Authority or arbitrator; or
(iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.applicable Law;
(f) Each no consent, approval or exemption from or registration or filing with any Governmental Authority is required to be obtained or made by such Seller in connection with the execution and delivery of this Agreement or the consummation of the Sellers consents transactions contemplated under the terms of this Agreement except for reports required to Buyer be filed under applicable securities Laws;
(g) the Seller is a validly existing corporation and has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under the terms of this Agreement;
(h) this Agreement has been duly authorized, executed and delivered by such Seller and constitutes a legal, valid and binding obligation of such Seller enforceable against it in accordance with its terms;
(i) the Seller has no agreement or option, or right or privilege (whether by Law, pre-emptive, contractual or otherwise) capable of becoming an agreement or option, for the purchase or acquisition by such Seller or transfer to such Seller of additional securities of Company, including any stock options or warrants of Company;
(j) the Seller is not a member party to any shareholder, pooling, voting trust or other similar agreement or arrangement relating to the issued and outstanding Shares or any securities of its subsidiaries;
(k) the Seller has no indebtedness, liability or obligation to Company or any claims against Company, and Company is not indebted or otherwise obligated to such Seller; and
(l) the Seller will not have any claim against Company or any of its subsidiaries by reason of the Company at the Closingentering into of this Agreement.
Appears in 1 contract
Sources: Deposit Agreement (Smith a O Corp)
REPRESENTATIONS AND WARRANTIES OF SELLERS. 1. Each Seller represents, warrants and agrees that with respect to itself and the RVG Entity owned directly or indirectly, in whole or in part, by such Seller, respectively and for its own behalfthe Property owned directly or indirectly, represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as followsby such Seller:
(a) EXHIBIT A sets forth a true, correct and complete schedule of each Seller's type of entity and state of formation. Each of the Company, Kristara and B▇▇▇▇▇ Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the state of its formation and authorized to transact business in the State of New Jersey and that each where the Property owned by such Seller is located. Each Seller has the requisite limited liability company power and authority to carry on sell and convey the business in which it is engaged Property and to own its assetsexecute the documents referred to herein to be executed by such Seller. Prior to the Closing, each Seller shall have taken all actions required for the consummation of the transactions contemplated by this Agreement. Except for the consent of the applicable Existing Lender, no approvals or consents by third parties or Governmental Authorities are required in order for Sellers to execute, deliver consummate the transactions contemplated hereby. The execution and perform its obligations under delivery of this Agreement and the performance by each Seller Documentsof its obligations hereunder will not conflict with, or result in a breach of, any of the terms, conditions and to consummate the transaction contemplated herebyprovisions of any organizational documents or other agreement binding upon such Seller or any of its constituent entities.
(b) The execution and delivery by such Neither any Seller, nor any RVG Entity, nor any of the shareholders, members or partners of any Seller ofor any RVG Entity, and as the performance by such Seller case may be, has (i) made a general assignment for the benefit of its creditors, (ii) admitted in writing its inability to pay its debts as they mature, (iii) had an attachment, execution or other judicial seizure of any property interest which remains in effect or (iv) become generally unable to meet its financial obligations as they accrue. There is not pending any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or recomposition of any Seller or RVG Entity or any of the shareholders, members or partners of any Seller or any RVG Entity, as the case may be, or the debts of such parties under this Agreement any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or any of its shareholders, members or partners or all or any substantial part of its or their property.
(c) Sellers or an RVG Entity own legal and beneficial title to the Personal Property free and clear of all security interests, liens, mortgages, claims, charges, pledges, restrictions, equitable interests, restrictive covenants or encumbrances of any nature, except liens granted in connection with the Assumable Debt.
(d) Except as set forth on EXHIBIT J, no Person or entity (other agreementsthan CSCP) has a conditional or unconditional right or option to purchase or ground lease all or any portion of the Property, statementsincluding, certificateswithout limitation, instruments a right of first refusal or redemption.
(e) There are and there shall be no agreements (written or oral) in the nature of ground leases, space leases, licenses, permits, franchises, concessions or occupancy agreements or any amendments, side letters, guaranties or other documents to be executed related thereto, affecting the Premises other than the leases set forth in the rent rolls for the Premises attached hereto as EXHIBIT I and delivered by made a part hereof (each, a "Rent Roll") and the Sellers at the Closing pursuant to leases entered into in accordance with this Agreement (collectively, the “Seller Documents”) "Leases"). All information contained in the Rent Rolls is true, correct and complete. True, correct and complete copies of all Leases have been delivered to CSCP and are described in the consummation by such Seller Rent Rolls. Each of the transaction contemplated hereby Leases is in full force and effect. Except as otherwise shown on the Rent Rolls, all rents for the Premises (ias shown on the Rent Rolls) have been are being paid and are current. The security deposits (the "Security Deposits") under the Leases for the Premises, and whether such Security Deposits are in the form of cash or will be duly authorized a letter of credit, are as set forth in the Rent Rolls. No tenant under the Leases (each, a "Tenant") has paid any rent, fees, or other charges more than one month in advance. Except as set forth in the Rent Rolls, no Tenant is entitled to any free rent, abatement of rent or similar concession. A Seller or an RVG Entity is the landlord under each of the Leases, and approved by all necessary action no Seller or RVG Entity has assigned, mortgaged, pledged, sublet, hypothecated or otherwise encumbered any of such Sellerits rights or interests under any of the Leases, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict except in connection with the articles Assumable Debt. No Seller or RVG Entity has any knowledge of organization any subleases or operating agreement assignments executed on the part of any Tenant except for those disclosed in the Rent Roll. No Tenant has made any claim against any Seller or RVG Entity for any Security Deposits or other deposits (which has not been satisfied), and no Tenant has any defense or offset to rent accruing after the Closing Date. No Seller or RVG Entity has received any notice of any alleged default or breach on the part of such Seller or RVG Entity under any LawLeases, regulationthat is or is allegedly continuing, judgment, order or decree to which such and no Seller or RVG Entity has delivered any notice of any alleged default or breach on the Company part of any Tenant thereunder that is or is allegedly continuing. To Sellers' knowledge, no Seller, RVG Entity or Tenant is in default under any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other personLeases.
(f) Except as set forth in EXHIBIT J attached hereto and made a part hereof, no brokerage commission or other compensation is payable (or will, with the passage of time or occurrence of any event or both, be payable) with respect to any Lease, including renewal or expansion options. There are no brokerage agreements, finder's fee agreements or other similar agreements with respect to the Premises whereby any person shall be entitled to any commission or finder's fee with respect to any Lease, including renewal or expansion options.
(g) Except as set forth in EXHIBIT J attached hereto and made a part hereof, all tenant improvements required under the Leases to be performed by the landlord thereunder have been completed and paid for in full, and all tenant allowances, move-in reimbursements and other tenant inducement costs and work required under the Leases have been paid and performed in full, and Sellers shall deliver at the Closing lien waivers from all parties who have furnished materials or supplies or performed work or services with respect thereto.
(h) Except as set forth in EXHIBIT J attached hereto and made a part hereof, no Seller or RVG Entity has received any notes or notices from any party including, without limitation, any Governmental Authority, that any Seller or RVG Entity is in breach of, or that the Premises or the current use, occupancy or condition thereof violates, any applicable laws, ordinances, orders, rules, regulations, requirements ("Laws") issued by any federal, state, county, municipal or other governmental or quasi-governmental department, agency or authority having or asserting jurisdiction over or affecting any of the Premises (each, a "Governmental Authority") relating to the Premises (including, without limitation, the Americans With Disabilities Act of 1990, as amended), the legal occupancy thereof or the businesses conducted thereon, or applicable deed restrictions or other covenants, restrictions or agreements (including, without limitation, that certain Declaration of Reciprocal Easements and Covenants, dated September 13, 2002, by and among ▇▇▇▇▇▇ Avenue GF, LP, Green Dot, Inc., and Giant Food Stores, LLC (the "▇▇▇▇▇▇ ▇▇▇"), and any of the other Permitted Exceptions), site plan approvals, zoning or subdivision regulations or urban redevelopment plans applicable to the Premises, and, to the best of Sellers' knowledge, no Seller or RVG Entity is in breach of, and the Premises and the current use, occupation and condition thereof do not violate, any such Laws, deed restrictions or other covenants, restrictions or agreements, site plan approvals, zoning or subdivision regulations or urban redevelopment plans. The parking facilities at the Premises contain a sufficient number of striped parking spaces to comply with all Laws and with all parking commitments made by any Seller or RVG Entity under the Leases and any other documents affecting the Premises. The ▇▇▇▇▇▇ ▇▇▇ is in full force and effect and, to Sellers' knowledge, no party is in default thereunder. Sellers have provided a true, complete and correct copy of the ▇▇▇▇▇▇ ▇▇▇ to CSCP. The P & S Agreement (as defined in the ▇▇▇▇▇▇ ▇▇▇) is in full force and effect and, to Sellers' knowledge, no party is in default thereunder. Sellers have provided a true, complete and correct copy of the P & S Agreement to CSCP. The Residual Purchase Period (as defined in the ▇▇▇▇▇▇ ▇▇▇) ends on September 13, 2007. Green Dot (as defined in the ▇▇▇▇▇▇ ▇▇▇) remains the owner of all of Parcel 4 (as defined in the ▇▇▇▇▇▇ ▇▇▇). Parcel 4 remains subject to the terms of the ▇▇▇▇▇▇ ▇▇▇.
(i) To Sellers' knowledge, all certificates of occupancy, licenses, certificates and permits issued by any Governmental Authority or any board of fire underwriters or real estate board or similar organization or institution necessary for the operation of the Premises as currently conducted (collectively, the "Permits") are in full force and effect, and, to Sellers' knowledge, are transferable with the Premises to CSCP without charge. No written notice has been received by any Seller or RVG Entity that the Permits have been revoked or challenged. To Sellers' knowledge, no default has occurred in the due observance of any condition to any Permit, nor is there lacking any Permit needed in connection with the ownership or operation of the Premises.
(j) Except as set forth on EXHIBIT J, there is no litigation, action or proceeding (zoning, environmental or otherwise) or governmental investigation pending, or, to the best of Sellers' knowledge, threatened against, or relating to, any Seller, RVG Entity or the Premises, or the transactions contemplated by this Agreement. There is no unrepaired casualty affecting the Premises. There are no pending, or to Sellers' knowledge, threatened, condemnation or eminent domain proceedings relating to or affecting the Premises or reduction or elimination of any utility service to the Premises. No proceedings for the correction of the assessed valuation of the Premises have been filed and are pending. Sellers do not have knowledge of any Federal, State, County, municipal or other governmental plans to change the highway or road system in the vicinity of the Premises or to restrict or change access from any such highway or road to the Premises.
(k) There are no union or employment contracts or agreements (written or oral) affecting the Premises and there are no employees of any Seller, at the Premises or otherwise, who, by reason of any Law, or by reason of any union or other employment contract, written or otherwise, or any other reason whatsoever, would become employees of CSCP (or any designee or nominee of CSCP) as a result of the purchase of the Premises and/or the Interests by CSCP (or any designee or nominee of CSCP) or for whom CSCP (or any designee or nominee of CSCP) would be responsible. CSCP (and each designee or nominee of CSCP) will not be responsible for any obligations with respect to any persons employed at the Premises, whether under the WARN Act or otherwise, by virtue of CSCP's (or any designee's or nominee's) acquisition of the Property and/or the Interests, and by the execution of this Agreement, CSCP (and each designee or nominee of CSCP) is neither expressly nor implicitly assuming any liability, obligation, cost or expense whatsoever with respect to any employment contract, employee benefit plan or arrangement, employment policy or practice, collective bargaining agreement, union contract, employment related claims whether based on statute, common law, tort or otherwise or any other liability relating in any way to employees.
(l) There are no service or maintenance contracts or management agreements (written or oral) relating to the Premises other than (i) service or maintenance contracts entered into in accordance with the terms of this Agreement and (ii) those agreements set forth in EXHIBIT K attached hereto and made a part hereof (such contracts and agreements being hereinafter collectively referred to as the "Service Contracts"), and true, correct and complete copies of all of the Service Contracts have been delivered to CSCP. Each of the Sellers consents Service Contracts is in full force and effect, and no Seller or RVG Entity has given or received any written notices of default thereunder, and neither any Seller, any RVG Entity, nor to Buyer becoming a member the best of any Sellers' knowledge, any of the Company other parties thereto is in default of any of its obligations thereunder. As of the Closing Date, all management and leasing agreements with respect to the Premises shall have been terminated and all sums due thereunder shall have been paid by such Seller.
(m) The operating statements relating to the Premises for the calendar years ended December 31, 2003, and December 31, 2004 and for the period from January 1, 2005 through the last day of the month immediately prior to the date of this Agreement, copies of which have been delivered to CSCP, are true, correct and complete and do not contain untrue statements of any material facts or omit to state a material fact necessary to make the information contained therein not misleading. The operating statements were prepared in accordance with generally accepted accounting principles, consistently applied.
(n) True, correct and complete copies of all of Sellers' and RVG Entities' existing environmental reports relating to the Premises (the "Existing Environmental Reports") were provided by Sellers to CSCP.
(o) True, correct and complete copies of all of Sellers' or RVG Entities' existing appraisals of the Premises (the "Existing Appraisals") were provided by Sellers to CSCP.
(p) Except as expressly set forth in the Environmental Reports (as hereinafter defined) or as described on EXHIBIT J, (i) to each Seller's knowledge, there have never been any Hazardous Materials used, handled, manufactured, generated, produced, stored, treated, processed, transferred, or disposed of in, at or on the Premises, except in compliance with all applicable Laws, and there are no underground storage tanks at the ClosingPremises and (ii) no Seller or RVG Entity has received written notice from any person or entity of any violation of any Environmental Laws or the presence of Hazardous Materials at the Premises. For purposes of this Agreement (x) the term "Hazardous Materials" shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material, mold, fungi, or any pollutant or contaminant; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of presently existing federal, state or local safety guidelines, whichever are more stringent; (c) any substance, gas material or chemical which is defined as or included in the definition of "hazardous substances," "toxic substances," "hazardous materials," "hazardous wastes" or words of similar import under any Law or under the regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.9061 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. ss.1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss.1251, et seq.; and (d) any other chemical, material, gas, or substance, the exposure to or release of which is prohibited, limited or regulated by any governmental or quasi-governmental entity or authority that has jurisdiction over the Premises or the operations or activity at the Premises, (y) the term "Environmental Laws" means all presently existing applicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authori
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cedar Shopping Centers Inc)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each SellerFor all purposes of this Agreement, respectively the phrase “to Sellers’ knowledge and for its own behalfbelief” and similar phrases means the actual, represents and warrants to Buyerconscious knowledge of ▇▇▇ ▇▇▇▇▇▇▇▇, as of the date hereof and as of the Closing Date, as follows:
(a) Each of the Company, Kristara and BJr. and/or ▇▇▇▇ ▇▇▇▇▇▇▇▇ is without any duty to investigate or inquire. In accordance with, and subject to the provisions of Section 10.13, each Seller, on its own behalf and not on behalf of the other Sellers, hereby makes the following representations and warranties to Purchaser with respect to itself and to that portion of the Property owned by such Seller, all of which are made as of the Agreement Date and shall be true and correct on the Closing Date, and all of which shall survive Closing for a limited liability company period of one (1) year only (the “Survival Period”) (provided, however, the foregoing limitation on the period of survival of such representations and warranties shall not apply to any representations and warranties made by Sellers pursuant to the Sellers Closing Documents, the intent of the parties being that the terms, conditions and provisions of the Sellers Closing Documents shall govern in such event):
(a) Sellers are duly organizedformed, validly existing and and, to the extent applicable, in good standing under the laws of the State of New Jersey Texas, are qualified to do business in, and that each has the requisite limited liability company power in good standing in, such state; and authority have full power, authority, and legal right to carry on the business in which it is engaged execute and deliver, and to own its assetsperform and observe the provisions of, to execute, deliver and perform its obligations under this Agreement and the Seller Sellers Closing Documents, and to consummate otherwise carry out the transaction transactions contemplated herebyhereunder.
(b) The execution and delivery by such Seller of, This Agreement and the performance by such Seller of its obligations under this Agreement and any other agreementsSellers Closing Documents are, statements, certificates, instruments or other documents to will be when executed and delivered by Sellers, legally binding on, and enforceable against, Sellers in accordance with their respective terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, receivership and other similar laws affecting the rights and remedies of creditors generally, and by general principles of equity (whether applied by a court of law or equity). The execution by Sellers at the Closing pursuant to of this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller Sellers of the transaction transactions contemplated hereby (i) have been or do not, and at the Closing will be duly authorized and approved by all necessary action of such Sellernot, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of any of the terms or provisions of, or constitute a default underor a condition which upon notice or lapse of time or both would ripen into a default under any indenture, any contractagreement, instrument, commitment instrument or arrangement obligation to which such any Seller or the Company is a partyparty or, to Sellers’ knowledge and belief, by which such Seller the Property or the Company any portion thereof is bound or to which any of such Seller’s or the Company’s assets are subjectbound, and (vi) do not does not, and at the Closing will not result in not, to Sellers’ knowledge and belief, constitute a violation of any law, order, rule or regulation applicable to Sellers or any portion of the imposition Property of a lien on any court or of such Seller’s any federal, state or municipal regulatory body or administrative agency or other governmental body having jurisdiction over Sellers or any portion of the Company’s assetsProperty.
(c) This Agreement Exhibit 3.1(c) attached hereto constitutes a true and each complete list, in all material respects, of (i) all leases and temporary occupancy agreements, licenses and the like with third-parties encumbering the Property in existence as of the Agreement Date and to be assigned to Purchaser at Closing (the “Existing Tenant Leases”), and (ii) all amendments and modifications to such Existing Tenant Leases. Sellers shall deliver to Purchaser a true and complete copy of the Existing Tenant Leases (including any amendments thereto), and other Seller Documents will constitute revenue generating agreements (such as antenna license agreements and vending agreements) relating to the legalProperty. To Sellers’ knowledge and belief, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(dy) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller parties in possession of the transaction contemplated hereby.
(e) Property other than Sellers or Affiliates of Sellers pursuant to leases or occupancy agreements to be terminated on or before Closing and tenants under the LED Members (i) are the sole record holders and beneficial owners Existing Tenant Leases or subtenants of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyersuch tenants, and (ivz) have except for Purchaser, no person or entity has the right to purchase or an option to purchase the Property. Each Existing Tenant Lease is in full force and effect and has not entered into been amended, modified or supplemented in any agreement way that has not been disclosed on Exhibit 3.1(c) attached hereto. The Leases furnished to sellPurchaser pursuant to this Agreement constitute all written and oral agreements of any kind for the leasing, hypothecate rental or otherwise dispose occupancy of any portion of the Interest to any other person.
(f) Each Property, except for those term sheets, leasing proposals or letters of the Sellers consents to Buyer becoming a member of the Company at the Closing.intent which are also disclosed on Exhibit 3.1
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each SellerThe Sellers hereby represent and warrant to, respectively and for its own behalfagree with, represents and warrants to Buyerthe Buyer that, as of the date hereof and as of the Closing Date, as followsDate of the transaction contemplated by this Agreement if later:
(a) Each a. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Sellers of this Agreement and for the sale and delivery of the Shares to be sold by the Sellers hereunder, including a waiver of the Lock-Up Agreement from the Company, Kristara have been obtained; and B▇▇▇▇▇ is a limited liability company the Sellers have full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Sellers hereunder;
b. This Agreement has been duly organizedauthorized, executed and delivered by the Sellers and constitutes the legal, valid and binding obligation of the Sellers, enforceable against the Sellers in accordance with its terms;
c. The Sellers have been duly incorporated or organized and are validly existing and as a corporation (in the case of 989) or as a trust (in the case of the Trust) in good standing under the laws of its jurisdiction or organization;
d. The sale of the State Shares to be sold by the Sellers hereunder, the execution of New Jersey this Agreement by the Sellers and that each has the requisite limited liability company power and authority to carry on compliance by the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under Sellers with all of the provisions of this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction transactions herein contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any contractobligation of the Sellers or any indenture, instrumentmortgage, commitment deed of trust, loan agreement or arrangement other agreement or instrument to which such Seller the Sellers are a party or the Company is a party, by which such Seller or the Company is Sellers are bound or to which any of such Seller’s the property or assets of the Company’s assets Sellers are subject, and (vi) do not and nor will not such action result in any violation of the imposition provisions of a lien on the certificate or articles of incorporation or by-laws (or other organization documents) of the Sellers, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Sellers or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with any such Seller’s court or governmental agency or body is required for the sale of the Shares to be sold by the Sellers hereunder or the Company’s assets.
(c) This Agreement constitutes and each consummation by the Sellers of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its termstransactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as such enforceability may be limited required under state securities or Blue Sky laws in connection with the purchase of the Shares by bankruptcythe Buyer; Subject to the foregoing, moratoriumthe Shares when received by the Buyer shall be free from restrictions on transferability;
e. The Sellers have, insolvencyand immediately prior to the Closing Date will have, reorganization good and valid title to the Shares to be sold by the Sellers hereunder on such date free and clear of all liens, encumbrances, equities or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or claims (except any encumbrances imposed by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain have been waived or prohibit (or seek to restrain or prohibit) the consummation by lifted); and, upon delivery of such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders Shares and beneficial owners of the Interestpayment therefor pursuant hereto, (ii) have good and marketable valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the Interest, (iii) have Buyer;
f. There are no legal or governmental proceedings pending to which the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into Sellers are a party or of which any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each property of the Sellers consents are the subject which, if determined adversely to Buyer becoming a member the Sellers, individually or in the aggregate, would prevent or impair the consummation of the transactions contemplated by this Agreement; and
g. The sale of the Shares by the Sellers to the Buyer has been registered by the Company at on the ClosingRegistration Statement, and the Sellers have not been notified by the Company that the Sellers’ ability to sell the Shares pursuant to the Registration Statement has been terminated or suspended for any reason.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller hereby represents and warrants (severally with respect to Buyerhimself, the Shares owned by such Seller and the Exchange Shares to be acquired by such Seller, and not jointly and severally with others) to the Buyer as of the date hereof and as of the Closing Date, this Agreement as follows:
a. This Agreement has been duly executed and delivered by such Seller and (a) Each of the Companyassuming due authorization, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, the other Sellers and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”Buyer) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in constitutes a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller obligation, enforceable against such Seller in accordance with its terms.
b. Such Seller has full right, except title and interest in and to the Shares.
c. Such Seller has all the necessary power and authority and has taken all necessary action to sell the Shares.
d. The Shares are free and clear of any and all Liens (as such enforceability defined in the Purchase Agreement) other than those arising as a result of or under the terms of the Purchase Agreement and those that may be limited imposed on the Shares by bankruptcythe Shareholders’ Agreement dated October 24, moratorium2019 among the Company and the parties listed on Schedule A thereto.
e. The Shares constitute all shares of capital stock of the Company held of record or beneficially by such Seller as of the Effective Date.
f. The execution, insolvencydelivery and performance by such Seller of this Agreement do not conflict with, reorganization violate or result in the breach of, or create any Lien (as defined in the Purchase Agreement) on the Shares pursuant to, any agreement, instrument, order, judgment, decree, law or DM3\9293941.2 governmental regulation to which such Seller is a party or is subject or by which the Shares are bound.
▇. ▇▇ governmental, administrative or other similar Laws affecting third party consents or limiting approvals are required by or with respect to such Seller in connection with the enforcement execution and delivery of creditors’ rights generally this Agreement or by general principles the consummation of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).the transactions contemplated hereby.
(d) To the best of such Seller’s knowledge, there h. There are no actions, suits, proceedingsclaims, claims investigations or demands other legal proceedings pending or, to the knowledge of such Seller, threatened against or by such Seller that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
▇. ▇▇ broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Seller.
j. Such Seller will comply with all applicable laws and regulations in effect in any jurisdiction in which such Seller purchases or sells Exchange Shares and obtain any consent, approval or permission required for such purchases or sales under the laws and regulations of any kindjurisdiction to which such Seller is subject or in which such Seller makes such purchases or sales, pending or threatened and neither the Buyer nor CWCO shall have no responsibility therefor.
k. Such Seller understands and accepts that the acquisition of the Exchange Shares involves various risks, including those risk factors set forth in CWCO’s periodic and other reports filed with the U.S. Securities and Exchange Commission (collectively, the “ClaimsCommission”), against including in its 2021 Annual Report on Form 10-K. Such Seller represents that it is able to bear any loss associated with an investment in the Exchange Shares it will acquire pursuant to this Agreement.
▇. ▇▇▇▇ ▇▇▇▇▇▇ confirms that it is not relying on any communication (written or affecting oral) of the Buyer, CWCO or any of their affiliates, as investment advice or as a recommendation to acquire the Exchange Shares. It is understood that information and explanations related to the terms and conditions of the Exchange Shares provided by the Buyer, CWCO or any of their affiliates shall not be considered investment advice or a recommendation to acquire the Exchange Shares, and that none of the Buyer, CWCO nor any of their affiliates is acting or has acted as an advisor to such Seller in deciding to acquire in the Exchange Shares. Such Seller acknowledges that none of the Buyer, CWCO nor any of their affiliates has made any representation regarding the proper characterization of the Exchange Shares for purposes of determining such Seller’s authority to acquire in the Exchange Shares.
m. Such Seller is familiar with the business and financial condition and operations of CWCO. Such Seller has had access to such information concerning CWCO and the Exchange Shares as it deems necessary to enable it to make an informed decision concerning the acquisition of the Exchange Shares.
n. Such Seller understands that no federal or state agency has passed upon the Company merits or risks of an investment in the Exchange Shares or made any finding or determination concerning the fairness or advisability of this acquisition. DM3\9293941.2
o. Such Seller confirms that restrain none of the Buyer, CWCO nor any of their affiliates has (A) given any guarantee or prohibit representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or seek otherwise) of an acquisition of the Exchange Shares or (B) made any representation to restrain such Seller regarding the legality of an investment in the Exchange Shares under applicable securities, investment or prohibitsimilar laws or regulations. In deciding to acquire the Exchange Shares, such Seller is not relying on the advice or recommendations of the Buyer, CWCO or their affiliates and such Seller has made its own independent decision that the acquisition of the Exchange Shares is suitable and appropriate for such Seller.
p. Such Seller has such knowledge, skill and experience in business, financial and investment matters that such Seller is capable of evaluating the merits and risks of an investment in the Exchange Shares. With the assistance of such ▇▇▇▇▇▇’s own professional advisors, to the extent that such Seller has deemed appropriate, such Seller has made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Exchange Shares and the consequences of this Agreement. Such Seller has considered the suitability of the Exchange Shares as an investment in light of its own circumstances and financial condition and such Seller is able to bear the risks associated with an investment in the Exchange Shares.
q. Such Seller is an “accredited investor” as defined in Rule 501(a) under the consummation Securities Act of 1933, as amended (the “Securities Act”). Such Seller agrees to furnish any additional information requested by the Buyer, CWCO or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the acquisition of the Exchange Shares.
r. Such Seller is acquiring the Exchange Shares solely for such Seller’s own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Exchange Shares. Such Seller understands that the Exchange Shares have not been registered under the Securities Act or any securities laws by reason of specific exemptions under the provisions thereof which depend in part upon the investment intent of such Seller and of the other representations made by such Seller in this Agreement. Such Seller understands that the Buyer and CWCO are relying upon the representations and agreements contained in this Agreement (and any supplemental information) for the purpose of determining whether this transaction meets the requirements for such exemptions.
s. Such Seller understands that the Exchange Shares are “restricted securities” under applicable federal securities laws and that the Securities Act and the rules of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners Commission provide in substance that such Seller may dispose of the InterestExchange Shares only pursuant to an effective registration statement under the Securities Act or an exemption therefrom, (ii) have good and marketable title such Seller understands that neither the Buyer nor CWCO has any obligation or intention to register any of the Exchange Shares, or to take action so as to permit sales pursuant to the InterestSecurities Act (including Rule 144 thereunder). Accordingly, such Seller understands that under the Commission's rules, such Seller may dispose of the Exchange Shares principally only in “private placements” which are exempt from registration under the Securities Act, in which event the transferee will acquire “restricted securities” subject to the same limitations as in the hands of such DM3\9293941.2 Seller. Consequently, such Seller understands that such Seller must bear the economic risks of the investment in the Securities for an indefinite period of time.
t. Such Seller agrees: (iiiA) have the full right, title, power and authority to validly that such Seller will not sell, assign, pledge, give, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest Exchange Shares or any interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to a registration of the Exchange Shares under the Securities Act and all applicable securities laws, or in a transaction which is exempt from the registration provisions of the Securities Act and all applicable securities laws; (B) that the certificate representing the Exchange Shares will bear a legend making reference to the foregoing restrictions; and (C) that CWCO shall not be required to give effect to any purported transfer of such Exchange Shares except upon compliance with the foregoing restrictions.
u. Such Seller acknowledges that neither the Buyer, CWCO nor any other person.person offered to sell the Exchange Shares to it by means of any form of general solicitation or advertising, including but not limited to: (A) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or (B) any seminar or meeting whose attendees were invited by any general solicitation or general advertising.
(f) Each v. Such Seller acknowledges that some of the Sellers consents information known by or provided to Buyer becoming a member such Seller in connection with the acquisition of the Company at CWCO Stock may constitute “material non-public information” within the Closingmeaning of Rule 10b-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and other U.S. securities laws. Such Seller acknowledges that it will handle such material non-public information in accordance with applicable law, including U.S. securities laws. Such Seller acknowledges and agrees that such Seller is prohibited from any buying or selling of CWCO Stock on the basis of material non-public information until after the information either becomes publicly available (such as in reports filed by CWCO under the Exchange Act) or ceases to be material. Such Seller acknowledges that it is aware of the restrictions of applicable securities laws, including Rule 10b-5 under the Exchange Act, relating to the trading in securities of an issuer, including while in possession of material non-public information regarding that issuer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Consolidated Water Co. Ltd.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, represents and warrants to Buyer, as of the date hereof and as As of the Closing Date, Sellers jointly and severally hereby represent and warrant to Buyer, its successors and assigns, as follows:
(a) Each of the Company, Kristara and B▇▇▇▇▇ is a limited liability company Sellers are duly organizedorganized entities, validly existing existing, and in good standing under the laws of the State of New Jersey and that each has state in which they were incorporated. Sellers have the requisite limited liability company corporate power and authority to carry on the business in which Business as it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.now being conducted;
(b) The execution and delivery by such Seller ofexecution, delivery, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have has been or will be duly authorized and approved by all necessary corporate action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in the violation of any of Sellers’ Certificates of Formation or their company regulations;
(c) Sellers have clear, good, and marketable title to the Assets, free and clear of all liens, security interests, pledges, encumbrances, hypothecations or claims of any nature whatsoever; and the 59 Disposal Plant is free from any environmental damage or adverse claims by any environmental government authority;
(d) Sellers have full authority to transfer their interest in and to the Assets, and no other person or entity has any record or beneficial equity interest in the Assets;
(e) The execution, delivery, and performance of this Agreement by Sellers (i) does not require the consent of any third party; (ii) will not violate any applicable law, judgment, order, injunction, decree, rule, regulation or ruling of any governmental authority to which Sellers are subject or by which Sellers are bound; and (iii) will not, either alone or with the giving of notice or the passage of time, or both, conflict with, constitute grounds for termination of, or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contractmaterial agreement, instrument, commitment license, or arrangement permit to which such Seller or the Company is Sellers are a party, by which such Seller or the Company is bound party or to which any of such Seller’s or the Company’s assets Sellers are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.;
(f) Each Sellers, their predecessors and affiliates have complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof), and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against any of them alleging any failure to comply;
(g) Sellers have timely filed all Tax Returns [which shall mean any return or filing required or appropriate to file with the Internal Revenue Service or with the taxing authority of each state, county and other governmental entity in which Sellers consents do Business, including without limitation any required state franchise tax returns] that they were required to Buyer becoming a member file. All such Tax Returns were correct and complete in all respects. All taxes, including without limitation all franchise, withholding and payroll taxes, owed by Sellers (whether or not shown or required to be shown on any Tax Return) have been paid, and Sellers shall remain liable for all taxes that accrue up until the time of Closing; and
(h) Sellers make no representation or warranty, express or implied, at law or in equity, with respect to any of its assets (including, without limitation, the Company at the ClosingAssets), liabilities, or operations, including, without limitation, with respect to merchantability or fitness for any particular purpose, and any such other representations or warranties are hereby expressly disclaimed. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS SECTION 6, BUYER IS PURCHASING THE ASSETS ON AN “AS-IS, WHERE-IS” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLERS MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY ASSETS OTHER THAN THE ASSETS (AS DEFINED HEREIN) OR ANY LIABILITIES OTHER THAN THE ASSUMED LIABILITIES IN ▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ IMPLIED AT LAW OR IN EQUITY.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pegasi Energy Resources Corporation.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyerwarrants, as of the date hereof severally and as of the Closing Datenot jointly, as follows:
(a) Each such Seller is the sole legal, beneficial and record owner of the CompanySecurities set forth opposite such Seller's name on Exhibit A, Kristara free and Bclear of any and all liens, claims, charges, rights or other encumbrances of any kind or nature whatsoever, and such Seller does not own, directly or indirectly, any additional Company securities (except that ▇▇▇▇▇ is a limited liability company duly organizedwill retain the Retained Stock, validly existing and in good standing under subject to the laws terms of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.Agreement);
(b) The execution the execution, delivery and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction transactions contemplated hereby (i) have been or will be duly and lawfully authorized and approved by all necessary action on the part of such Seller, and such Seller has the full power and authority to enter into and perform such Seller's obligations under this Agreement;
(iic) do not this Agreement constitutes the valid and will not require any further or additional consent, approval or authorization binding obligation of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, subject to principles of public policy and bankruptcy, insolvency and similar laws affecting the rights of creditors generally and except as such enforceability that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).brought;
(d) To the best consummation of the transactions contemplated by this Agreement (i) does not and will not (with or without the passage of time) contravene any provision of the formation or organizational documents of such Seller (if applicable), as in effect of the date hereof, (ii) does not and will not (with or without the passage of time) violate any law or regulation, or any order or decree of any court or governmental authority applicable to such Seller, (iii) does not and will not (with or without the passage of time) conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any material contract or agreement of such Seller’s knowledge, there are no actions, suits, proceedings, claims and (iv) does not and will not (with or demands without the passage of time) result in the creation or imposition of any kind, pending lien or threatened encumbrance on the Securities;
(collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibite) the consummation by such Seller of the transaction transactions contemplated hereby.
by this Agreement does not require and will not (ewith or without the passage of time) require the LED Members (i) are the sole record holders and beneficial owners consent or approval of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.person or entity including without limitation any governmental authority;
(f) Each no agent, broker, investment banker, person or firm acting under the authority of such Seller is or will be entitled to any broker's or finder's fee or any other commission directly or indirectly in connection with the transactions contemplated herein; and
(g) Such Seller acknowledges that it is capable of evaluating the merits and risks of the Sellers consents transactions contemplated hereby, such Seller has had an adequate opportunity to Buyer becoming a member ask questions and receive answers from the Company concerning any and all matters relating to the transactions described herein and has had the opportunity to review the terms and conditions of the Agreement with legal counsel of its choice, and such Seller has decided to sell the Securities based upon such Seller's review and investigation of the Company. Neither the Company at nor any other party has made any oral or written representation, inducement, promise or agreement to Seller in connection with the Closingsale of the Securities, other than as expressly set forth in this Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller(a) The Sellers represent and warrant to the Buyers on the date hereof, respectively and for its own behalf, represents and warrants to Buyer, as on the date that each of the date hereof Pre-delivery Instalments is payable, the Prepositioning Date and as of on the Closing Date, as followsDelivery Date that:
(ai) Each of the Company, Kristara Sellers are duly incorporated and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of their jurisdiction of incorporation;
(i) the State of New Jersey Sellers have the corporate capacity and that each has have taken all corporate actions to obtain and maintain all consents, approvals, authorisations, licenses or permits necessary for the requisite limited liability company power Sellers:
(A) to enable the Sellers lawfully to enter into, exercise their rights and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver comply with and perform its their obligations under this Agreement; and
(B) to make this Agreement admissible in evidence in their Relevant Jurisdictions;
(ii) no Relevant Person, Sub-Charterer and no member of the Seller DocumentsGroup (including any Approved Manager which is a member of the Group):
(A) is a Prohibited Person;
(B) is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
(C) owns or controls a Prohibited Person; nor
(D) has a Prohibited Person serving as a director, officer or employee;
(iii) the Vessel is not the subject of Sanctions;
(iv) neither any part of the Purchase Price nor the Vessel shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions, or to fund any activity in a Prohibited Country;
(v) they are not in breach of any Anti-Money Laundering Laws and they have instituted and maintained systems, controls, policies and procedures designed to:
(A) prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
(B) promote and achieve compliance with Anti-Money Laundering Laws including, but not limited to, ensuring thorough and accurate books and records, and utilisation of commercially reasonable efforts to consummate ensure that Affiliates acting on behalf of the transaction contemplated herebySellers shall act in compliance with Anti- Money Laundering Laws.
(b) The execution in respect of the Shipbuilding Contract:
(i) the Shipbuilding Contract is legal, valid, binding and delivery by such Seller of, enforceable against the Builder and the performance Builder has obtained all necessary consents, authorisations and permits for the construction of the Vessel;
(ii) as at the date of this Agreement, the Sellers are not aware of any default by any party under the Shipbuilding Contract (except where disclosed to and approved by the Buyers);
(iii) as at the date of this Agreement, the Sellers are not aware of any event entitling either party under the Shipbuilding Contract to terminate the Shipbuilding Contract;
(iv) the Shipbuilding Contract remains in full force and effect; and
(v) each copy of the Shipbuilding Contract provided to the Buyers is a true and complete copy of such Seller document and there have been no amendments, supplements and/or replacements to the same (except where disclosed to and approved by the Buyers); and
(vi) as at the date of its obligations this Agreement, the Sellers have paid the first instalment and second instalment of the Shipbuilding Contract Price payable under clause 3 of Article II (Contract Price & Terms of Payment) of the Shipbuilding Contract in the amount of US$9,450,000 to the Builder and that as at the date of this Agreement, no other instalments of the Shipbuilding Contract Price and no other amount is due and payable by the Sellers to the Builder under the terms of the Shipbuilding Contract; and
(vii) the Vessel is free from any registered mortgages or any other liens, encumbrances or debts. If there is any change in the flag state from the Flag State at the date of this Agreement and any other agreementssuch new Flag State require the Buyers to have a physical presence or office in the jurisdiction of such Flag State, statementsall fees, certificates, instruments costs and expense arising out of or other documents to be executed in connection with the establishment and delivered maintenance of such physical presence or office by the Sellers at Buyers shall be borne by the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assetsSellers.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 1 contract
Sources: Sale Agreement
REPRESENTATIONS AND WARRANTIES OF SELLERS. (a) Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyer, as the Buyers that such Seller is the sole record and beneficial owner of the date hereof Shares set February 28, 2003 Page 2 forth opposite the name of such Seller on Schedule A, and as at Closing, such Seller will deliver to the Buyers such Shares, free and clear of the Closing Date, as follows:any lien or security interest of any kind whatsoever.
(ab) Each of the Company, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each Seller has the all requisite limited liability company power and authority to carry on the business in which it is engaged execute and to own its assetsdeliver this Agreement, to execute, deliver and perform its obligations under this Agreement and the Seller DocumentsAgreement, and to consummate the transaction contemplated hereby.
Transaction. The execution, delivery and performance of this Agreement by each Seller and the consummation by each Seller of the Transaction have been duly authorized by all necessary limited partnership action and no other proceedings on the part of such Seller are necessary to authorize this Agreement or to consummate the Transaction. This Agreement has been duly executed and delivered by each Seller and (b) The assuming the due authorization, execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtainedeach Buyer), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement obligation of such Seller enforceable against such Seller in accordance with its terms.
(c) The execution, except as such enforceability may be limited delivery and performance by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting each Seller of this Agreement and the enforcement consummation of creditors’ rights generally or the Transaction require no action by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity)respect of, or filing with, any governmental body, agency or official.
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Each Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members acknowledges that: (i) are the sole record holders Buyers may be in possession of material, nonpublic information regarding the Company, its financial condition, results of operations, business, properties, assets, liabilities, management, projections, reserves, appraisals and beneficial owners of the Interestplans, proposals and prospects; (ii) have good such information may be materially adverse to such Seller's interests; and marketable title to the Interest, (iii) if such Seller were in possession of some or all of such information such Seller might not be willing to sell any or all of the Shares pursuant to the Transaction or would have a materially different view of the full rightbenefits of the Transaction. Each Seller also acknowledges and agrees that the Buyers shall have no obligation to disclose to such Seller any of the information referred to in the preceding sentence. Each Seller further acknowledges that such Seller has conducted its own investigation, titleto the extent that such Seller has determined necessary or desirable, power regarding the information described in the first sentence of this paragraph. Each Seller hereby, on its own behalf and authority to validly sellon behalf of its affiliates and its and their respective successors and assigns, assign, transfer irrevocably waives and convey the Interest to renounces any and all claims of any nature whatsoever it may have or acquire against Buyer, its directors, officers, employees, representatives, or any of their respective affiliates and (iv) their respective heirs, successors and assigns, based on non-disclosure, deceptive trade practices, other laws or otherwise, and acknowledges that neither the Buyers nor any of their respective directors, officers, employees, representatives or any of their respective affiliates have not entered into made any agreement to sellrepresentation or warranty, hypothecate whether express or otherwise dispose implied, of any kind or character in respect of or in connection with the Interest to any other personTransaction, except as set forth in this Agreement.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (H&f Corp Investors Iv Bermuda LTD)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Seller severally and for its own behalf, individually (and not jointly and severally) represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as followsBuyer that:
(a) Each Such Seller is an entity duly formed and legally existing under the laws of the Companystate of its formation, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing qualified to do business in and in good standing under (to the extent that the law of such state provide therefor) each state in which its Oil and Gas Properties are located where the laws of such state require such an entity owning the State Oil and Gas Properties to qualify to do business;
(b) Such Seller has full power under the provisions of New Jersey and that each has the requisite limited liability company power and authority applicable law to carry on the business in which it is engaged and to own its assets, to execute, deliver enter into and perform its obligations under this Agreement and the Seller Documentshas taken all proper action to authorize entering into this Agreement and performance of its obligations hereunder;
(c) Other than requirements (if any) that there be obtained consents to assignment or waivers of preferential rights to purchase from third parties, and except for approvals ("Routine Governmental Approvals") required to consummate be obtained from governmental entities who are lessors under leases forming a part of the transaction contemplated hereby.
Oil and Gas Properties (bor who administer such leases on behalf of such lessors) The which are customarily obtained post-closing, neither the execution and delivery by such Seller ofof this Agreement, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and nor the consummation by such Seller of the transaction transactions contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Sellerhereby, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict nor the compliance with the articles of organization terms hereof, will violate or operating result in any default under any agreement of such Seller or any Law, regulation, judgment, order or decree instrument to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, party or by which such Seller or the Company is bound Properties are bound, or violate any order, writ, judgment, injunction, decree, statute, rule or regulation applicable to such Seller or to which any of such Seller’s the Properties or the Company’s assets are subject, and (vi) do not and will not result in a lien, charge or other encumbrance on the imposition of a lien on any of such Seller’s or the Company’s assets.Properties;
(cd) This Agreement constitutes constitutes, and each of the Conveyance and all other Seller Documents will constitute documents required to be delivered at Closing will, when executed and delivered, constitute, the legal, valid and binding agreement obligation of such Seller Seller, enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcybankruptcy or other laws applicable generally to creditor's rights and as limited by general equitable principles;
(e) Except as disclosed in Exhibit D to this Agreement, moratorium, insolvency, reorganization to the knowledge of the officers (or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(drepresentatives) To the best of such Seller set forth on Exhibit "G" hereto (the knowledge of such persons being hereinafter called "Seller’s knowledge's Knowledge"), there are is no actionswritten claim or demand or pending lawsuit, suitsnor any compliance order, proceedings, claims notice of probable violation or demands of any kindsimilar governmental action, pending or threatened before any court or governmental agency that (collectivelyi) would result in an impairment or loss of title to any part of the Property, “Claims”)or impairment of the value thereof, against (ii) would hinder or affecting such Seller impede the operation of the Property, or the Company that restrain or prohibit (or seek iii) seeks to restrain or prohibit) , or to obtain substantial damages from such Seller, with respect to this Agreement or the consummation of all or part of the transactions contemplated in this Agreement;
(f) To Seller's Knowledge and subject to the provisions of this paragraph, the historical production and expense data described on the ▇▇▇▇▇▇▇▇ ARIES Engineering disk and in the JN Resources, Inc/The ▇▇▇▇▇▇▇ ▇. Helis Company, L.L.C. Summary Brochure and Detail Brochure - Mid Continent" which were provided on behalf of Sellers to Buyer (the "Information"), and any supplement thereto, was substantially complete and correct as of the date of such delivery. Except as set forth in this paragraph 4(f) no representation or warranty of any kind are made by Sellers as to the Information or with respect to the interests to which the Information relates and Buyer expressly agrees that any conclusions drawn therefrom shall be the result of its own independent review and judgment. The representations contained in this paragraph shall apply only to matters of fact, and shall not apply to any information, data, printouts, extrapolations, projections, documentation, maps, graphs, charts, or tables which reflect, depict, present, portray, or represent, or which are based upon or derived from, in whole or in part, interpretation of the Information including, but not limited to, matters of geological, geophysical, engineering, or scientific interpretation;
(g) The transfer of the Properties to Buyer does not violate any covenants or restrictions imposed on such Seller by any bank or other financial institution under any mortgage or other similar instrument, and will not result in the creation or imposition of a lien on any portion of the Properties;
(h) Except as disclosed by such Seller in writing, to Seller's Knowledge, such Seller is in material compliance with all laws, rules, regulations, ordinances, codes, orders, licenses, concessions and permits pertaining to the Properties. The representation in this paragraph 4(h) does not extend to compliance with environmental laws, rules, regulations, or permits pertaining to the ownership or operation of the transaction contemplated hereby.Properties, which is separately addressed in other provisions of this Agreement;
(e) the LED Members (i) are To Seller's Knowledge, (i) such Seller has all material governmental licenses and permits and has properly made all material filings, necessary or appropriate to obtain those licenses and permits to own and operate the sole record holders and beneficial owners of the InterestProperties, (ii) have good such licenses, permits and marketable title to the Interestfilings are in full force and effect, (iii) have the full rightno material violations exist in respect of any such licenses, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyerpermits or filings, and (iv) no proceeding is pending or has been threatened in writing challenging, or seeking the revocation or limitation of any such licenses, permits or filings;
(j) To Seller's Knowledge, and except with respect to matters that would not have not entered into any agreement to sell, hypothecate or otherwise dispose a material adverse effect on the Oil and Gas Properties taken as a whole (a "Material Adverse Effect")
(i) the terms of the Interest Leases, operating agreements, production sales contracts, farmout agreements and other contracts or agreements respecting the Properties can be found either of record in the counties in which the Properties are located or are reflected or referenced in Sellers' files, and (ii) the Leases and the contracts affecting the Leases are currently in full force and effect in accordance with their applicable terms. Such Seller has not received any written notice asserting a claim of any defaults, offsets, or cancellations from any lessors with respect to the Leases, or from any other person.party under any of the contracts or agreements to which such Seller is a party and which affect the Properties, which would reasonably be expected to have a Material Adverse Effect;
(fk) Each To Seller's Knowledge, and except as described on Exhibit E, such Seller is not obligated by virtue of any prepayment arrangement under any contract for the sale of hydrocarbons, including "take or pay" obligation, hedging or forward sale agreements, or similar provisions or a production payment or any other arrangement to deliver hydrocarbons from the Properties at some future time without then or thereafter receiving full payment therefor;
(l) To Seller's Knowledge, there are no surface use or access agreements currently in force and effect that materially interfere with the manner in which oil and gas operations are currently taking place on the Leases;
(m) To Seller's Knowledge, none of the Sellers consents ▇▇▇▇▇ included within the Properties has been represented by its operator, either in a pending AFE or other written proposal, to Buyer becoming a member other well participants as being currently required to be plugged and abandoned;
(n) All ad valorem, property, production, severance and similar taxes and assessments based on or measured by the ownership of property or the production of hydrocarbons or the receipt of proceeds therefrom with respect to the Properties for all periods prior to the Effective Date have been properly paid and all such taxes and assessments which must be paid prior to the Closing shall have been properly paid by Seller;
(o) To Seller's Knowledge, the oil and gas operations being conducted on the Properties do not violate any Federal, state, or local, (including common law), ordinance, rule, standard, prohibition, or regulation relating to health, safety, or the environment including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. 9601 et seq., as amended ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), the Clean Air Act, the Clean Water Act and the Safe Drinking Water Act, or any other pertinent rule, order, regulation, or statute, whether state, federal or local, and pertaining to environmental matters as the same exist as of the Company at Effective Date (collectively "Environmental Laws"). To Seller's Knowledge, such Seller has timely filed all required reports, obtained all required approvals and permits, and generated and maintained all required data, documentation and records which such Seller is required to file under any applicable Environmental Laws;
(p) To Seller's Knowledge, there has not been, and is not occurring, any discharge or release of any "Hazardous Substances" in, on or around any of the Properties of Sellers in amounts or concentrations which reasonably could be expected to give rise to liabilities or obligations exceeding $50,000 in any instance or exceeding $150,000 in the aggregate (net to the interests of Sellers therein) and such Seller warrants that Buyer does not, and after Closing will not, have any liabilities or obligations in excess of the aforesaid amounts with respect to the introduction of Hazardous Substances into the environment for activities relating to the operation of the Properties prior to Closing.. For purposes of this Agreement, the term "Hazardous Substances" shall mean any material regulated as such or addressed as such under any Environmental Laws;
Appears in 1 contract
Sources: Agreement of Sale and Purchase (St Mary Land & Exploration Co)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:
(a) Each of the CompanySeller, Kristara and B▇▇▇▇▇ if an entity, is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller Seller, including with limitation the Operating Agreement of the Company, a copy of which is included in Schedule II attached hereto, or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED SmartGuard Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.
Appears in 1 contract
Sources: Limited Liability Company Interest Purchase Agreement (Fomo Corp.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Except as to each Seller’s representations and warranties as to due authority and the like as expressly provided below, respectively the Transferred Assets are being sold “as is,” and for its own behalf“where is” with no express or implied representation and warranties of any kind, nature, or type whatsoever from, or on behalf of, such Seller. Notwithstanding the foregoing, each Seller severally, but not jointly, represents and warrants to Buyer, as of the date hereof and as of the Closing DatePurchaser, as follows:
(a) Each of the Company, Kristara and B▇▇▇▇▇ Such Seller (i) is a limited liability company duly incorporated or organized, validly existing existing, and in good standing under the laws of the State its jurisdiction of New Jersey incorporation or organization, as applicable; and that each (ii) has the all requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver deliver, and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction transactions contemplated hereby.
(b) The execution and delivery by such Seller ofexecution, delivery, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) are within the power of such Seller and have been or will be duly authorized and approved by all necessary action actions on the part of such Seller. The execution of this Agreement by such Seller constitutes, or will constitute, a legal valid and binding obligation of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws laws of general application relating to or affecting or limiting the enforcement of creditors’ rights generally or by and general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(dc) To the best of such Seller’s knowledge, there are no actionsconsent, suitsapproval, proceedingsauthorization or order of, claims or demands of registration or filing with, or notice to, any kind, pending court or threatened (collectively, “Claims”), against governmental agency or affecting body having jurisdiction or regulatory authority over such Seller or the Company that restrain or prohibit (or seek to restrain any of its properties) is required for (i) such Seller’s execution and delivery of this Agreement (and each agreement executed and delivered by it in connection herewith) or prohibit(ii) the consummation by such Seller of the transaction transactions contemplated by this Agreement (and each agreement executed and delivered by it in connection herewith) or, to the extent so required, such consent, approval, authorization, order, registration, filing or notice has been obtained, made or given (as applicable) and is still in full force and effect.
(d) No person or entity acting on behalf of such Seller or any of its affiliates or under the authority of any of them is or will be entitled to any brokers’ or finders’ fee or any other commission or similar fee, directly or indirectly, from Seller or any of its affiliates in connection with any of the transactions contemplated hereby, except for Emmes Group.
(e) Such Seller holds a security interest in the LED Members (i) are Transferred Assets, and to such Seller’s knowledge, based solely upon the sole record holders and beneficial owners results of Uniform Commercial Code search requests of the Interestoffices of the Secretary of State of the States of Delaware and California, (ii) have good and marketable title both certified on September 16, 2010, there are no outstanding security interests of record that are superior to the Interest, (iii) have security interests of such Seller in the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other personTransferred Assets.
(f) Each Debtor is in default of its obligations to such Seller, and such Seller is entitled to sell the Transferred Assets under the terms of the Sellers consents to Buyer becoming a member Loan Agreement, the provisions of the Company at CUCC, and other applicable laws.
(g) The disposition of the ClosingTransferred Assets effected by this Agreement and the other documents and instruments executed and delivered in connection herewith transfer to Purchaser all of Debtor’s rights therein, discharges such Seller’s security interest therein (except for new security interests granted by Purchaser as set forth in Section 13 of this Agreement), and discharges any security interests or liens subordinate to the security interest of such Seller.
(h) Such Seller has complied in all material respects with the relevant provisions of the CUCC, including without limitation the requirements of Chapter 6 thereof, to transfer Debtor’s right, title and interest in and to the Transferred Assets to Purchaser in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Foreclosure Sale Agreement (MultiCell Technologies, Inc.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers hereby represent and for its own behalf, represents and warrants to Buyer, warrant as of the date hereof and as of the Closing Date, Date as follows:
(a) Each of the Companya. Sellers possess perpetual existence as legal entities, Kristara and B▇▇with several capacity to ▇▇▇ is a limited liability company duly organizedand be sued in their own name, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company with full power and authority legal right to carry on the their business in which it is engaged as currently conducted and to own its assets, to execute, deliver and perform its their obligations arising under this Agreement and the Seller other Sale Documents;
b. The execution, delivery and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) Sale Documents have been or will be duly authorized and approved by all necessary action on behalf of such Seller, Sellers and (iii) do not and will not require contravene the charter or by-laws of Sellers or any further current law, governmental rule, regulation, judgment or additional consent, approval or authorization of such Seller, order binding on Sellers and (iiiii) do not and will not violate, contravene or conflict with the articles or result in any breach of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, terms or constitute a default under, under any contractdocument, instrument, commitment or arrangement agreement to which such either Seller is a party or by which either Seller or the Company its properties are bound;
c. No action, suit or proceeding to which either Seller is a partyparty is pending or, by which such Seller to the knowledge of either Seller, pending without service of process or threatened before any court, arbitrator or administrative or other governmental body that may restrain, enjoin or question the Sale Documents, the consummation of the transactions contemplated thereby, the performance of obligations or the Company enjoyment of rights and benefits contemplated therein, or that is bound or to which any otherwise related thereto;
d. Each of such Seller’s or this Agreement and, upon the Company’s assets are subjectexecution and delivery thereof, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Sale Documents will constitute has been duly executed and delivered by Sellers and constitutes the legal, valid and binding agreement obligations of such Seller Sellers enforceable against such Seller Sellers in accordance with its their respective terms;
e. All approvals and consents of Sellers and their respective equityholders that are required in connection with any transaction contemplated by the Sale Documents shall on the Closing Date have been duly obtained, except as such enforceability may each consent of any Person required to be limited obtained by bankruptcySellers to authorize, moratoriumor required by Sellers in connection with the execution, insolvencydelivery or performance by Sellers of the Sale Documents to which it is a party has been obtained and is in full force and effect (or will be obtained and in full force and effect prior to the Delivery Time), reorganization there is no default by Sellers in the observance or other similar Laws affecting or limiting performance of any of the enforcement of creditors’ rights generally or by general principles of equity conditions and restrictions (regardless of whether such enforceability is considered in a proceeding at Law if any) imposed on or in equity).
(d) To connection with such consent, and neither the best execution, delivery and performance by the Sellers, nor the performance by Sellers of such Seller’s knowledgetheir respective obligations under, there are no actionsthe Sale Documents requires the consent, suitsapproval, proceedingsorder or authorization of, claims the giving of notice to, the registration with or demands the taking of any kindother action in respect of any governmental body;
f. As of immediately prior to the Closing, pending or threatened (collectively, “Claims”), against or affecting such each Seller or shall be the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller sole legal and beneficial owner of the transaction contemplated hereby.
Aircraft, as set forth in EXHIBIT A, and the Aircraft shall be owned by Sellers free from any Security Interests (eother than Permitted Liens) the LED Members (i) are the sole record holders and beneficial owners any transfer restrictions, and upon execution and delivery of the Interest, (ii) have Warranty ▇▇▇▇ of Sale good and marketable title to the Interest, Aircraft shall be transferred to Purchaser free from any Security Interests (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) other than Permitted Liens);
▇. ▇▇▇▇▇▇▇ are not aware of any outstanding claims by Lessee in respect of any maintenance which have not previously been reimbursed by Sellers;
h. To the best of Sellers’ knowledge, there has not occurred any event that would give rise to a tax indemnification obligation of Lessee for which Sellers would have a claim, whether such obligation is imposed upon Lessee in any Lease or in any other document entered into by Lessee in connection with the transactions contemplated by any agreement to sell, hypothecate Lease;
i. There has not occurred any event of loss or otherwise dispose of the Interest to any other person.accident or material physical damage to the Aircraft;
(f) Each of the Sellers consents to Buyer becoming a member of the Company at j. At the Closing, all Aircraft shall:
i. comply with the Inspection requirements set forth in EXHIBIT E, in accordance with Article 3; and ii. be in fully operational and airworthy condition.
Appears in 1 contract
Sources: Aircraft Purchase Agreement (Erickson Air-Crane Inc.)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers represent and for its own behalf, represents warrant to ITEC as of the execution of this Agreement and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:
(a) Each 3.1 Sellers have all of the Companyrequisite right, Kristara power and B▇▇▇▇▇ authority, subject to obtaining the approval of Shareholders, without the consent of any other person or entity, to execute and deliver this Agreement and the agreements to be executed and delivered hereby and to carry out the transactions contemplated hereby and thereby. All actions required to be taken by Sellers to authorize the execution, delivery and performance of this Agreement and all agreements and transactions contemplated hereby have been duly and properly taken, with the exception of those actions specifically identified in Section 6 hereof ("Conditions Precedent to Obligations of ITEC") to be taken by Sellers subsequent to the execution of this Agreement but prior to the Closing.
3.2 This Agreement and the other agreements and other documents to be delivered at the Closing by Sellers have been duly executed and delivered by Sellers and constitute valid and binding obligations of Sellers enforceable in accordance with their respective terms. The execution and delivery of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby will not (immediately, or upon notice, with the passage of time, or both) result in the creation of any lien, charge or encumbrance of any kind or the termination or acceleration of any indebtedness or other obligation of CG, and are not prohibited by, do not and will not violate or conflict with any provision of, and do not and will not constitute a default under or a breach of (i) the articles of incorporation or bylaws of CG, (ii) any contract, agreement or other instrument to which Sellers are a party or by which Sellers are bound, (iii) any order, decree or judgment of any court or governmental agency binding upon Sellers, or (iv) any law, rule or regulation applicable to Sellers.
3.3.1 CG is a limited liability company corporation duly organized, validly existing and in good standing under the laws of Nevada, and has full power and authority and all requisite rights, licenses and permits to carry on its business as it is presently conducted by CG. CG maintains its primary office in the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated herebyCalifornia.
3.3.2 Except as set forth on Schedule 3.3 all of the CG shares have been duly and validly authorized and granted or sold and there are no contributions, capital calls or other amounts outstanding with respect to any CG shares. The CG shares were not issued in violation of any preemptive or other right of any person. There are no outstanding options, rights, warrants, conversion rights or other agreements or commitments to which CG is a party or binding upon CG for the sale or transfer by CG of any interest in CG except as described on Schedule 3.3.
3.4 Other than approval by a Shareholders no approval, authorization, registration, consent, order or other action of or filing with any person, including any court, administrative agency or other governmental authority, is required for (bi) The the execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreementsor the agreements contemplated hereby, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not the consummation of the transactions contemplated hereby and will not require any further or additional consent, approval or authorization thereby.
3.5.1 The unaudited financial statements for CG at and as of such SellerMarch 31,2003, (iii"CG Financial Statements") do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders attached hereto as Schedule 3.5; and beneficial owners of the Interest, (ii) are accurate and complete.
3.5.2 CG is not subject to any liability or obligation (whether absolute, accrued, contingent or otherwise and whether matured or unmatured) other than liabilities and obligations described in the CG Financial Statements and/or on Schedule 3.5.
3.6 The books of account and other records (financial and otherwise) of CG are complete and correct and are maintained in accordance with good business practices and generally accepted accounting practices.
3.7 Since January 1, 2003, CG has operated its business only in the ordinary course, and there has not been any of the following in connection with CG except as disclosed in the CG Financial Statements, Schedule 3.5 or as set forth below:
3.7.1 any material adverse change in the financial condition, assets, liabilities, personnel, prospects or business affairs of CG in its relationships with suppliers, vendors, customers, representatives, employees or others, nor has there been the occurrence of any event or condition which could reasonably be expected to have such an effect;
3.7.2 any declaration or payment of any dividend or other distribution;
3.7.3 any forgiveness, cancellation, write-off or write-down of debts or claims, or waiver of any rights related to CG other than in the ordinary course of negotiating settlements of creditor claims and settlement of litigation filed against CG, as disclosed on Schedule 3.7;
3.7.4 any increase or decrease in the compensation, benefits or method or rate of reimbursement paid, payable or to become payable by CG to any employee, independent contractor or other person who renders services in connection with CG or its business, or any payments of compensation other than salary to any of such employees;
3.7.5 any incurrence of debt;
3.7.6 any entry into any material agreement, commitment or transaction in excess of ten thousand dollars ($10,000) or any capital expenditure in excess of five thousand dollars ($5,000);
3.7.7 any incurrence of any security interest, lien, charge, encumbrance or claim on, or any damage or loss to, any of the assets of CG;
3.7.8 any change in the method of operation or practices of CG, including any change in the accounting, billing or invoicing procedures of CG;
3.7.9 any sale, transfer or disposal by or for CG or purchase by or for CG of any properties or assets, except in the ordinary course of negotiating settlements of creditor claims and settlement of litigation as disclosed on Schedule 3.7; or
3.7.10 any agreement, commitment or understanding by CG to do any of the foregoing.
3.8 CG owns or otherwise controls the contracts, assets, leases, accounts receivable, trademarks, patents and other tangible and intangible property which is carried on its Financial Statements, and CG has good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyersuch assets, and such assets are not and will not be subject to any pledge, option, escrow, hypothecation, lien, security interest, financing statement, lease, license, easement, right of way, encumbrance or other restriction of any kind except as disclosed on Schedule 3.8.
3.9 CG does not own any real property.
3.10 Except as described on Schedule 3.10, CG does not lease any personal property. Schedule 3.10 sets forth an accurate, correct and complete list of all office furnishings and other personal property leased by CG.
3.11 Schedule 3.11 contains a list of all information in the nature of trade secrets, know-how or proprietary information, including but not limited to, software, copyrighted and copyrightable material, electronic data processing systems, program specifications and technical information relating to or used by CG (iv) the "Proprietary Information"). The Proprietary Information does not violate or infringe upon any trade secret rights, patents, trademarks or copyrights of any other person. Except as set forth on Schedule 3.11, the Proprietary Information is owned exclusively by CG and no other person or entity has any claim thereto or rights therein.
3.12 Except as set forth in Schedule 3.12, CG has paid all taxes required to be paid and has filed all returns, declarations and reports or information returns and statements required to be filed.
3.13 Except as set forth in Schedule 3.13, CG is not engaged in, or a party to, or to the best of CG's knowledge, threatened with, any suit, action, proceeding, or investigation or legal, administrative, arbitration or other method of settling disputes, and no officer of CG knows, anticipates or has notice of any basis for any such action. CG has not received notice of any investigation, suit or proceeding threatened or contemplated by any foreign, federal, state or local government or regulatory authority including, without limitation, those involving CG's employment notices or policies or compliance with environmental regulations.
3.14 CG has not retained any broker or finder or incurred any liability or obligation for any brokerage fees, commissions or finder's fees with respect to this Agreement or the transactions contemplated hereby.
3.15 CG has no accounts or notes receivable with the exception of those described in Schedule 3.15, for which no defenses to payment have been asserted, nor does CG have reason to believe that such receivables would not entered into be paid (with the exception of the obligor's inability to pay for financial reasons).
3.16 Neither this Agreement nor any agreement attachment, schedule, certificate or other statement delivered pursuant to this Agreement in or in connection with the transactions contemplated hereby contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements and information contained herein or therein, in light of the circumstances in which they were made, not misleading. Each schedule delivered pursuant to this Agreement is accurate and complete. To Seller's knowledge, there is no information necessary to enable a prospective purchaser of CG or its common stock to make an informed decision with respect to the purchase of CG or its common stock which has not been expressly disclosed to ITEC in this Agreement or in writing in connection with ITEC's due diligence process.
3.17 with respect to the shares of common stock and options of ITEC being acquired by Shareholders (the "ITEC Securities"):
3.17.1 Shareholders are acquiring the ITEC Securities for its own account, and not with a view toward the subdivision, resale, distribution, or fractionalization thereof; SHAREHOLDERS has no contract, undertaking, or arrangement with any person to sell, hypothecate transfer, or otherwise dispose of the Interest ITEC Securities (or any portion thereof hereby subscribed for), and has no present intention to enter into any such contract, undertaking, agreement or arrangement;
3.17.2 This subscription for the ITEC Securities by Shareholders is not the result of any form of general solicitation or general advertising;
3.17.3 Shareholders hereby acknowledges that: (i) the offering of the ITEC Securities was made only through direct, personal communication between ITEC and Sellers; (ii) Shareholders have had full access to material concerning ITEC's planned business and operations, which material was furnished or made available to Shareholders by representatives of ITEC; (iii) ITEC has given Shareholders the opportunity to ask any questions and obtain all additional information desired in order to verify or supplement the material so furnished; and (iv) Shareholders understand and acknowledges that a purchaser of the ITEC Securities must be prepared to bear the economic risk of such investment for an indefinite period because of: (A) the heightened nature of the risks associated with an investment in ITEC, including without limitation the risk of loss of the entire amount of their investment; and (B) illiquidity of the ITEC Securities due to the fact that (1) the ITEC Securities has not been registered under the Securities Act of 1933 (the "Act") or any state securities act (nor passed upon by the SEC or any state securities commission), and (2) the ITEC Securities may not be registered or qualified by Shareholders under federal or state securities laws solely in reliance upon an available exemption from such registration or qualification, and hence ITEC Securities cannot be sold unless they are subsequently so registered or qualified, or are otherwise subject to any applicable exemption from such registration requirements; and (3) substantial restrictions on transfer of the ITEC Securities, as set forth by legend on the face or reverse side of every certificate evidencing the ownership of the ITEC Securities ;
3.17.4 Shareholders are an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated by the Securities and Exchange Commission under the Act, or, if ITEC is non-accredited, then it has sufficient business expertise and sophistication so as to be able to make a determination concerning the relative risks and merits of an investment in the securities, and has a pre-existing business or personal relationship with at least one of the shareholders, directors or executive officers of ITEC;
3.17.5 Shareholders have received material concerning ITEC's planned business and operations and carefully read it; the decision to make an investment in the ITEC Securities has been taken solely in reliance upon the information contained such materials, and such other written information supplied by an authorized representative of ITEC as Shareholders may have requested; Shareholders acknowledge that all documents, records and books pertaining to this investment have been made available for inspection by ITEC, its attorneys, accountants and purchaser representatives and that it has been informed by ITEC that the books and records of ITEC will be available for inspection by Shareholders or its agents and representatives at any time, and from time to time, during reasonable business hours, upon reasonable notice and upon the signing of a Confidentiality Agreement between ITEC and Sellers; Shareholders further acknowledge that it (or its advisors, agents and/or representatives) has had a reasonable and adequate opportunity to ask questions of and receive answers from ITEC concerning the terms and conditions of this subscription, the nature of the ITEC Securities and the business and operations of ITEC, and to obtain from ITEC such additional information, to the extent possessed or obtainable without unreasonable effort or expense, as is necessary to verify the accuracy of the information contained in the materials provided by ITEC; all such questions have been answered by ITEC to the full satisfaction of Shareholders; Shareholders are not relying upon any oral information furnished by ITEC or any other person in connection with his investment decision, and in any event, no such oral information has been furnished to Shareholders which is in any way inconsistent with or contradictory to any information contained in the materials provided to Shareholders by ITEC in writing as described above;
3.17.6 Shareholders understand and acknowledge that the ITEC Securities will be unsecured by ITEC or any other person., and non-recourse to any shareholder, officer, director, employee, agent or representative of ITEC; and
(f) Each 3.17.7 Shareholders has been advised to consult with an attorney regarding all legal matters concerning the purchase and ownership of the Sellers consents to Buyer becoming ITEC Securities, and with a member tax advisor regarding the tax consequences of purchasing the Company at the ClosingITEC Securities.
Appears in 1 contract
Sources: Agreement to Acquire Shares (Imaging Technologies Corp/Ca)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyerwarrants, as of the date hereof severally and as of the Closing Datenot jointly, as follows:
(a) Each such Seller is the sole legal, beneficial and record owner of the CompanySecurities set forth opposite such Seller's name on Exhibit A, Kristara free and Bclear of any and all liens, claims, charges, rights or other encumbrances of any kind or nature whatsoever, and such Seller does not own, directly or indirectly, any additional Company securities (except that Stout will retain the Retained Stock, subject to the terms of this Agree▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.);
(b) The execution the execution, delivery and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “Seller Documents”) and the consummation by such Seller of the transaction transactions contemplated hereby (i) have been or will be duly and lawfully authorized and approved by all necessary action on the part of such Seller, and such Seller has the full power and authority to enter into and perform such Seller's obligations under this Agreement;
(iic) do not this Agreement constitutes the valid and will not require any further or additional consent, approval or authorization binding obligation of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, subject to principles of public policy and bankruptcy, insolvency and similar laws affecting the rights of creditors generally and except as such enforceability that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).brought;
(d) To the best consummation of the transactions contemplated by this Agreement (i) does not and will not (with or without the passage of time) contravene any provision of the formation or organizational documents of such Seller (if applicable), as in effect of the date hereof, (ii) does not and will not (with or without the passage of time) violate any law or regulation, or any order or decree of any court or governmental authority applicable to such Seller, (iii) does not and will not (with or without the passage of time) conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any material contract or agreement of such Seller’s knowledge, there are no actions, suits, proceedings, claims and (iv) does not and will not (with or demands without the passage of time) result in the creation or imposition of any kind, pending lien or threatened encumbrance on the Securities;
(collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibite) the consummation by such Seller of the transaction transactions contemplated hereby.
by this Agreement does not require and will not (ewith or without the passage of time) require the LED Members (i) are the sole record holders and beneficial owners consent or approval of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.person or entity including without limitation any governmental authority;
(f) Each no agent, broker, investment banker, person or firm acting under the authority of such Seller is or will be entitled to any broker's or finder's fee or any other commission directly or indirectly in connection with the transactions contemplated herein; and
(g) Such Seller acknowledges that it is capable of evaluating the merits and risks of the Sellers consents transactions contemplated hereby, such Seller has had an adequate opportunity to Buyer becoming a member ask questions and receive answers from the Company concerning any and all matters relating to the transactions described herein and has had the opportunity to review the terms and conditions of the Agreement with legal counsel of its choice, and such Seller has decided to sell the Securities based upon such Seller's review and investigation of the Company. Neither the Company at nor any other party has made any oral or written representation, inducement, promise or agreement to Seller in connection with the Closingsale of the Securities, other than as expressly set forth in this Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively severally and for its own behalfnot jointly, represents and warrants to Buyer, as of the date hereof and as of the Closing Date, Purchaser as follows:
(a) Each of the Company, Kristara This Agreement has been duly executed and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated herebydelivered by such Seller.
(b) The Assuming due execution and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and any other agreementsby Purchaser, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectivelyconstitutes the legal, the “Seller Documents”) valid and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action binding obligation of such Seller, enforceable against it in accordance with its terms.
(iic) do not Such Seller has the full legal capacity and will not require any further or additional authority to execute and deliver this Agreement and perform its obligations hereunder.
(d) No consent, approval approval, authorization or authorization of filing with any persons or entities on such Seller's part was or is required in connection with such Seller's execution or delivery of this Agreement or the consummation of the transactions contemplated hereby, (iii) do except for such consents as have been obtained or would not and will not violate, contravene or conflict with the articles of organization or operating agreement of have a material adverse effect on such Seller Seller's obligations hereunder or any Lawsuch consent, regulationapproval, judgment, order authorization or decree filing under the Shareholders' Agreement or from the Company or its affiliates as to which such Seller makes no representation.
(e) Neither the execution or delivery of this Agreement nor the Company consummation of the transactions contemplated hereby will (i) in the case of the Trust, conflict with or result in any breach of such Seller’s or any provision of the Company’s assets are subject, (iv) do not and will not require trust agreement of the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing withTrust, or any notice to, any Person (beyond that which has already been obtained), (vii) do not and will not result in a violation or breach of, or constitute a default under, any contract, instrument, commitment or arrangement material agreement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each Immediately prior to the transactions contemplated hereby, such Seller was the sole record holder and the sole beneficial owner of, and has good and valid title to, the Shares set forth opposite such Seller's name on Schedule I hereto; and such Shares were owned by such Seller at such time free and clear of any and all liens, pledges, charges, agreements, options, security interests or other encumbrances or claims of any kind whatsoever consented to or created by such Seller other than, with respect to Uhlenhop, those set forth in the Pledge and Security Agreement which will be terminated effective as of the Sellers consents Closing pursuant to Buyer becoming a member Section 5.3 below.
(g) The Shares being sold by such Seller hereunder constitutes all of the shares of common stock of the Company at beneficially owned by such Seller or any of its respective affiliates, other than, in the Closingcase of Uhlenhop, employee stock options granted to Uhlenhop by the Company.
(h) Such Seller is an "accredited investor" (as that term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended) and by reason of its business and financial experience, it has such knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of, and protecting its own interests in connection with, the proposed sale of its Shares hereunder. Such Seller is fully satisfied with the Trust Purchase Price, in the case of the Trust, or the Uhlenhop Purchase Price, in the case of Uhlenhop, and such applicable purchase price is all that such Seller is or will be entitled to receive for the Shares if is selling hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Von Hoffmann Holdings Inc)
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers jointly and for its own behalf, represents severally represent and warrants warrant to Buyer, as of the date hereof and as of the Closing Date, as followsBuyer that:
(a) Each of 7.1 Neither the Company, Kristara and B▇▇▇▇▇ is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company power and authority to carry on the business in which it is engaged and to own its assets, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, and to consummate the transaction contemplated hereby.
(b) The execution and delivery by such Seller of, and Sellers of this Agreement or the instruments of transfer or any other documents delivered or to be delivered pursuant hereto by either or both Sellers or the performance by such Sellers hereunder or thereunder, nor the consummation of the transactions contemplated hereby or thereby, will violate, conflict with, result in the breach of or accelerate the performance required by any of the terms, conditions or provisions of the articles of incorporation or by-laws of Research Associates or any covenant, agreement or understanding to which either Seller is a party or any order, ruling, decree, judgment, arbitration award or stipulation to which either Seller is subject, or constitute a default thereunder or result in the creation or imposition of its obligations under any Lien upon any of the Purchased Assets, or allow any Person to accelerate any debt secured by any Purchased Asset.
7.2 To the best of Sellers’ knowledge, no consent, approval or authorization of, filing or registration with, or notification to, any Governmental Authority is required in connection with the execution and delivery of this Agreement and any other agreements, statements, certificates, instruments or other documents to be executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectivelySellers, the “Seller Documents”) and performance of their obligations hereunder or the consummation by such Seller of the transaction transactions contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional hereby. No consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict any Person is required in connection with the articles execution or delivery of organization or operating agreement this Agreement by Sellers, the transfer to Buyer of such Seller or any Lawthe Purchased Assets, regulation, judgment, order or decree to which such Seller or the Company performance by Sellers of any other obligation under this Agreement.
7.3 Neither Seller is engaged in, or a party to, any legal action, suit, investigation or other proceeding, except as referred to in Section 13.2 of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization ofAgreement, by or frombefore any court, arbitrator or administrative agency that relates to the Purchased Assets, and except as referred to in Section 13.2, neither Seller knows of any filing withbasis for any such action, investigation or proceeding. There are no outstanding orders, rulings, decrees, judgments or stipulations or proceedings to which either Seller is a party or by which either Seller is bound, by or with any court, arbitrator or administrative agency that relate to the Purchased Assets.
7.4 Neither Seller is a party to any license, contract, agreement (other than those listed on Schedule 2) with respect to, and has not made any sale, pledge or other transfer of, and has not granted any outstanding or unexpired right or option agreement, grant or obligation, whether written or oral, to purchase or acquire, all or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each part of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its termsPurchased Assets, except as such enforceability may be limited contemplated by bankruptcy, moratorium, insolvency, reorganization this Agreement or other similar Laws affecting or limiting under the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity)License Agreement.
(d) 7.5 Except for those patents and patent applications listed in Schedule 1 as expired, abandoned or lapsed, all patents and patent applications included in the Purchased Assets and listed in Schedule 1 are in force. The Sellers have no knowledge of any facts or claims which may bring validity of the patents into question. All patent applications, except for those listed in Schedule 1 as expired, abandoned or lapsed, included in the Purchased Assets are pending, in good standing and are being diligently pursued. There are no currently pending U.S. patent applications directly relating to C31G® Technology belonging to either Seller except as identified in Schedule 1. Sellers own the entire right, title and interest in and to their respective patents and patent applications without qualification, limitation, burden or encumbrance of any kind. Schedule 2 lists all licenses to or contracts with any Third Party or relating to patents, patent applications, patent rights, trademarks or trademark rights, trade secrets, Know-How or show-how.
7.6 To the best of such Seller’s Sellers’ knowledge, no infringement of any United States or foreign patent, trademark or copyright right has occurred or resulted from or is in any way involved in connection with the activities of the Sellers in the manufacture, license, sale and/or use by the Sellers of the C31G® technology, products and/or proposed products or by the receipt or use of such technology, products and/or proposed products by their customers for the purposes for which sold, or the promotion and advertising by them of their products and services. There is no pending or, threatened action, suit, proceeding or claim by others that the Sellers are infringing, or otherwise violating i) any patent rights, trademarks or trademark rights, copyright rights, licenses or royalty arrangements, trade secrets, Know-How, or proprietary techniques, including processes and substances, or rights thereto of others, or (ii) any discovery, invention or process that is the subject of a patent application filed by any Third Party or that Sellers have competed unfairly. There is no right of any Third Party (other than as listed on Schedule 2) to, or any infringement of, any of Sellers’ patents, patent applications, licensed patents, patent rights, trademark or trademark rights, copyright rights, licenses or royalty arrangements, trade secrets, Know-How or proprietary techniques, including processes and substances; and there is no pending or, to the Sellers’ knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of the patents licensed by Sellers, or of the validity or ownership of Sellers’ trademarks or copyright rights. Seller has no copies of any patentability, infringement or validity searches with respect to any patents listed on Schedule 1 or applications from which the patents listed on Schedule 1 were issued.
7.7 None of the patents or patent applications listed on Schedule 1 is involved in any interference, conflict or opposition proceeding nor has any such proceeding been threatened.
7.8 To the best of Sellers’ knowledge, none of the patents or patent applications listed on Schedule 1 is being infringed by any Third Party. Sellers have no information that any Third Party will undertake activities which will infringe any of the patents listed on Schedule 1. There is no reason to know or suspect that any person has sought, is seeking, or will seek to obtain patent coverage on any invention or development used in the conduct of the business of the Sellers or which is the subject of any of the patents and patent applications listed on Schedule 1 apart from the patentee(s) and applicant(s) currently referred to in such patents and patent applications. All agreements, contracts, licenses, assignments, indemnities and the like related to the Purchased Assets are valid and binding and in full force and effect and there are no actionsdefaults thereunder, suitsnor are there any facts or claims which would bring such validity and enforceability into question. None of the rights of Sellers thereunder will be impaired by the consummation of the transactions contemplated by this Agreement, proceedings, claims and all of the rights of Sellers thereunder will be enforceable by Buyer after the Closing Date without the consent or demands agreement of any kindother party.
7.9 Except for the expired, pending lapsed or threatened (collectivelyabandoned patents and patent applications listed on Schedule 1 or for those patents, “Claims”)patent applications or publications for which no maintenance fees, against annuities, taxes or affecting such the like are required to keep the patent, application or publication in force all maintenance fees, annuities, taxes and the like for any other patent or patent application listed on Schedule 1 are up to date.
7.10 There are no obligations to assign any of the patents, patent application or trademarks listed on Schedule 1 to any third party.
7.11 Except as identified on Schedule 1, neither Seller owns any registered copyrights.
7.12 Sellers own or possess sufficient licenses or other rights to use all patent rights, trademarks, service marks, inventions, processes, formulae, designs, trade names, trade secrets, trade dress, technology, Know-How, proprietary and confidential information and copyrights necessary to conduct the business now being conducted by Sellers. Sellers have obtained no licenses from any third party specifically to practice any of its C31G® Technology.
7.13 The Research Associates Assets and the Michaels Assets are all of the assets owned by Sellers specifically relating to C31G® Technology.
7.14 No representations or warranties made by either Seller in this Agreement and no statements made by either Seller in any certificate, schedule, exhibit or other writing delivered by each Seller or the Company that restrain referred to in or prohibit (pursuant to this Agreement contain, or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closingdate of its delivery will contain, any untrue statement of a material fact or omit or will omit any statement of a material fact necessary to make complete, accurate and not misleading every representation, warranty and statement of each Seller set forth in this Agreement or any such certificate, schedule, exhibit or other writing.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively and for its own behalf, Seller represents and warrants to Buyer, as of the date hereof Parent and as of the Closing Date, Acquisition as follows:: 2
(a) Each of the CompanySeller A, Kristara Seller B and B▇▇▇▇▇ Seller C is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey its incorporation.
(b) Each of Seller A, Seller B, Seller C and that each Seller E has the requisite limited liability company all necessary power and authority to carry on the business in which it is engaged execute and to own its assetsdeliver this Agreement, to execute, deliver and perform its obligations under this Agreement and the Seller Documents, hereunder and to consummate the transaction transactions contemplated hereby.
(bc) The execution execution, delivery and delivery by such Seller of, and the performance by such Seller of its obligations under this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the board of directors of each of Seller A, Seller B, Seller C and Seller E and no other proceedings on the part of any other agreementsof Seller A, statementsSeller B, certificates, instruments Seller C or other documents Seller E are necessary to be authorize this Agreement or to consummate the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by the Sellers at the Closing pursuant to this Agreement (collectively, the “each Seller Documents”) and the consummation by such Seller of the transaction contemplated hereby (i) have been or will be duly authorized and approved by all necessary action of such Seller, (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in constitutes a breach of, or constitute a default under, any contract, instrument, commitment or arrangement to which such Seller or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets are subject, and (vi) do not and will not result in the imposition of a lien on any of such Seller’s or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such each Seller enforceable against such each Seller in accordance with its terms, except as such that the enforceability hereof may be limited by subject to applicable bankruptcy, moratorium, insolvency, reorganization insolvency or other similar Laws laws now or hereinafter in effect affecting or limiting the enforcement of creditors’ ' rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated herebygenerally.
(e) The execution, delivery and performance by the LED Members Sellers of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) are contravene or conflict with the sole record holders and beneficial owners Certificate of the InterestIncorporation or By-Laws of any of Seller A, Seller B or Seller C or any organizational or governing documents of Seller E; (ii) have good and marketable title contravene or conflict with or constitute a violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon or applicable to any Seller, any of their respective subsidiaries or any of their respective properties; (iii) conflict with, or result in the Interestbreach or termination of any provision of or constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation, or loss of any benefit to which any Seller or any of its subsidiaries is entitled under any provision of any agreement, contract, license or other instrument binding upon such Seller, any of its subsidiaries or any of their respective properties, or allow the acceleration of the performance of, any obligation of any Seller or any of its subsidiaries under any indenture, mortgage, deed of trust, lease, license, contract, instrument or other agreement to which such Seller or any of its subsidiaries is a party or by which any Seller or any of its subsidiaries or any of their respective assets or properties is subject or bound; or (iv) result in the creation or imposition of any security interests, liens, claims, pledges, charges, voting agreements or other encumbrances of any nature whatsoever (collectively, "Liens") on any asset of any Seller or any of its subsidiaries, except in the case of clauses (ii), (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into any agreement to sell, hypothecate or otherwise dispose of the Interest to any other person.
(f) Each of the Sellers consents to Buyer becoming a member of the Company at the Closing.)
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller, respectively Sellers represent and for its own behalf, represents and warrants warrant to Buyer, as of the date hereof and as of the Closing Date, Purchaser as follows:
(a) Each of the CompanyA. Sellers are each corporations, Kristara and B▇▇▇▇▇ is a limited liability company each duly organized, validly existing and in good standing under the laws of the State of New Jersey and that each has the requisite limited liability company Delaware, with full corporate power and authority to carry on the conduct their business in which it is engaged as presently conducted and as proposed to own its assetsbe conducted by them, to execute, deliver enter into and perform its obligations under this Agreement and all other agreements as may be required to be executed by Sellers at or prior to Closing and pursuant to the Seller Documentsother provisions of this Agreement, and to consummate carry out the transaction transactions contemplated herebyby this Agreement. Sellers are each duly qualified to do business as a foreign corporation and are in good standing in every jurisdiction in which the failure to so qualify would have a material adverse effect on the business, prospects, assets or condition (financial or otherwise) of Sellers. Sellers have made available to Purchaser true and complete copies of each of their Certificates of Incorporation and By-Laws, each as amended to date and presently in effect.
(b) B. The execution execution, delivery and delivery performance by such Seller ofSellers of this Agreement, and the performance consummation by such Seller Sellers of its obligations under this the transactions contemplated hereby, have been duly authorized by all necessary corporate action. This Agreement and any other agreementswill, statementsupon execution, certificates, instruments or other documents to be have been duly executed and delivered by Sellers and constitutes the valid and binding obligations of Sellers at enforceable in accordance with its terms on a joint and several basis, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights or by general principles of equity. The execution and performance of the Closing pursuant to transactions contemplated by this Agreement (collectively, the “Seller Documents”) and the consummation compliance with its provisions by such Seller of the transaction contemplated hereby Sellers will not (i) have been conflict with or will violate any provision of their respective Certificates of Incorporation or By-Laws, as each may be duly authorized and approved by all necessary action of such Seller, amended to date; (ii) do not and will not require any further or additional consent, approval or authorization of such Seller, (iii) do not and will not violate, contravene or conflict with the articles of organization or operating agreement of such Seller or any Law, regulation, judgment, order or decree to which such Seller or the Company or any of such Seller’s or the Company’s assets are subject, (iv) do not and will not require the consent, approval, waiver, clearance, permit, license or authorization of, by or from, any filing with, or any notice to, any Person (beyond that which has already been obtained), (v) do not and will not result in a breach of, constitute (without due notice or constitute lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, consent or waiver under, any material contract, instrumentlease, commitment sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness, document creating or pertaining to an encumbrance or other arrangement to which such Seller the Sellers are a part or the Company is a party, by which such Seller or the Company is bound or to which any of such Seller’s or the Company’s assets Sellers are subject, and bound; (viiii) do not and will not result in the imposition of a lien on any encumbrance upon any of such Seller’s the Assumed Contracts; or the Company’s assets.
(c) This Agreement constitutes and each of the other Seller Documents will constitute the legal, valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar Laws affecting or limiting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity).
(d) To the best of such Seller’s knowledge, there are no actions, suits, proceedings, claims or demands of any kind, pending or threatened (collectively, “Claims”), against or affecting such Seller or the Company that restrain or prohibit (or seek to restrain or prohibit) the consummation by such Seller of the transaction contemplated hereby.
(e) the LED Members (i) are the sole record holders and beneficial owners of the Interest, (ii) have good and marketable title to the Interest, (iii) have the full right, title, power and authority to validly sell, assign, transfer and convey the Interest to Buyer, and (iv) have not entered into violate any agreement order writ, injunction, decree, statute, rule or regulation applicable to sell, hypothecate the Sellers or otherwise dispose to any of the Interest to any other personAssumed Contracts.
(f) Each C. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any governmental or regulatory authority or agency is required on the part of Sellers in connection with the Sellers consents execution and delivery of this Agreement or the transactions to Buyer becoming a member of the Company be consummated at the Closing.
▇. ▇▇▇▇▇▇▇, at the Closing, will have the right to sell and transfer to Purchaser the Assumed Contracts, free and clear of all encumbrances or restrictions, if any, so as to allow Purchaser to assume the obligations and benefits of Sellers thereunder. The delivery to Purchaser of the instruments of transfer of ownership contemplated by this Agreement will transfer to Purchaser right, title and interest in, and the benefits of, the Assumed Contracts, including any and all goodwill generated therefrom, free and clear of any and all encumbrances, obstructions or restrictions whatsoever.
E. Copies of all Assumed Contracts have been previously delivered or made available by Sellers to Purchaser. Seller further states:
1) Sellers are not in material breach of or default under any Assumed Contract.
2) To the knowledge of Sellers, there is no existing breach or default by any other party to any Assumed Contract.
3) Sellers are not in material breach or material default under any of the Assumed Contracts, and no event has occurred which, with the notice or lapse of time, would constitute a material breach or material default by Sellers or permit termination, modification, or acceleration thereunder.
4) There are no disputes, oral agreements or forbearance in effect as to the Assumed Contracts.
F. There is no action, suit or proceeding, or governmental inquiry or investigation, pending, or, to Sellers’ knowledge, any basis therefor or threat thereof, against Sellers which questions the validity of this Agreement or the right of Sellers to enter into it or perform their obligations hereunder.
G. Neither this Agreement nor any Exhibit hereto, nor any report, certificate or instrument furnished to Purchaser in connection with the transactions contemplated by this Agreement, when read together, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Suncoast Holdings, Inc)