Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Date: (a) the Vendor is the registered and beneficial owner of the Property and has the power to dispose of the same free and clear of all encumbrances save for reservations in the original grant for the crown; (b) the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part of the Vendor; (c) there are no present claims or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder; (d) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property; (e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances; (f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks; (g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted; (h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax Act; (i) the Vendor shall not enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaser; (j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and (k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not taken.
Appears in 1 contract
Sources: Offer to Purchase
Vendor’s Representations and Warranties. (1) The Vendor represents and warrants to the PurchaserPurchasing Parties that, with except as disclosed in the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion DateDisclosure Letter:
(a) the Vendor is the beneficial and registered owner of the Shares and will (subject to the ▇▇▇▇▇▇▇▇▇ Pre-Closing Reorganization Steps) be on the Closing Date the legal and beneficial owner of the Property Shares with good and has the power to dispose of the same marketable title thereto, free and clear of all encumbrances save for reservations in the original grant for the crownEncumbrances;
(b) the execution Vendor is incorporated, organized and delivery existing under the laws of this Offer does not conflict with any other agreement binding on the jurisdiction of its incorporation, the Vendor has good and will have beensufficient power, by authority and right to enter into and deliver this Agreement and the Completion DateVendor has the power, duly authorized by all necessary corporate action on authority and right to transfer the part legal and beneficial title and ownership of the VendorShares to the Purchaser free and clear of all Encumbrances;
(c) there are no present claims or litigation pending or to the Vendor's knowledgethis Agreement has been duly authorized, any claims or litigation threatened with respect to executed and delivered by, and constitutes a valid and legally binding obligation of, the Vendor, enforceable against the Property Vendor in accordance with its terms subject to general principles of equity and to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court;
(d) there is no contract, option or any other right of another binding upon the occupancy Vendor or use thereof capable of becoming a contract, option or right binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Shares other than pursuant to the provisions of this Agreement;
(e) neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor which could materially affect will result in the right violation of:
(i) any of the Purchaser provisions of the constating documents or by-laws of the Vendor; or
(ii) any Contract to own, occupy which the Vendor is a party or obtain revenue from the Property or materially affect Vendor is bound; except where such violation would not have a material adverse effect on the ability of the Vendor to perform carry out its obligations hereunder;
(df) no approval, order, consent of or filing with any Governmental Entity is required in connection with the execution and delivery by the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver this Agreement or any other department documents and agreements to be delivered under this Agreement or government agency or engineering department the performance of the obligations of the Vendor under this Agreement or any utility company which has jurisdiction over other documents and agreements to be delivered under this Agreement except where the Property which may affect failure to obtain such approval, order or consent or make such filing would not have a material adverse effect on the size ability of the Property, the use of the Property or access Vendor to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tankscarry out its obligations hereunder;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada person within the meaning of section 116 of the Income Tax ActAct (Canada);
(h) to the knowledge of the Vendor, neither the Corporation nor any of the Subsidiaries is a party to any court proceeding arising as a result of, or in relation to, the investigation of the Special Committee of the Board of Directors of ▇▇▇▇▇▇▇▇▇ International and, to the knowledge of the Vendor, there are no facts or circumstances that would be reasonably likely to result in the Corporation or the Subsidiaries becoming involved in any court action or proceeding, as a defendant, related to the matters raised in the report of the Special Committee of the Board of Directors of ▇▇▇▇▇▇▇▇▇ International; and
(i) to the Vendor shall not knowledge of the Vendor, there is no existing litigation in the United States against the Corporation or the Subsidiaries.
(2) ▇▇▇▇▇▇▇▇▇ International represents and warrants to the Purchasing Parties that, except as disclosed in the Disclosure Letter:
(a) ▇▇▇▇▇▇▇▇▇ International is incorporated, organized and existing under the laws of the jurisdiction of its incorporation, and ▇▇▇▇▇▇▇▇▇ International has good and sufficient power, authority and right to enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaserand deliver this Agreement;
(jb) this Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding obligation of, ▇▇▇▇▇▇▇▇▇ International, enforceable against ▇▇▇▇▇▇▇▇▇ International in accordance with its terms subject to general principles of equity and to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the Leases are enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation in the discretion of the Property existing as court;
(c) neither the entering into nor the delivery of this Agreement nor the completion of the date transactions contemplated hereby by ▇▇▇▇▇▇▇▇▇ International will result in the violation of:
(i) any of acceptance the provisions of this Offer by the Vendorconstating documents or by-laws of ▇▇▇▇▇▇▇▇▇ International; or
(ii) any Contract to which ▇▇▇▇▇▇▇▇▇ International is a party or is bound; except where such violation would not have a material adverse effect on the ability of ▇▇▇▇▇▇▇▇▇ International to carry out its obligations hereunder; and
(kd) no approval, order, consent of or filing with any Governmental Entity is required in connection with the Leases, execution and delivery by ▇▇▇▇▇▇▇▇▇ International of this Agreement or any other documents and agreements to be delivered under this Agreement or the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more performance of the tenants obligations of ▇▇▇▇▇▇▇▇▇ International under this Agreement or any other documents and agreements to be delivered under this Agreement except where the failure to obtain such Leases and approval, order or consent or make such filing would not have a material adverse effect on the Vendor has not received any notice from any tenant ability of such Leases alleging any default by the Vendor or requiring the Vendor ▇▇▇▇▇▇▇▇▇ International to take any action not takencarry out its obligations hereunder.
Appears in 1 contract
Sources: Share Purchase Agreement (Hollinger International Inc)
Vendor’s Representations and Warranties. (a) The Vendor represents and warrants to the Purchaser, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(ai) the Vendor is a corporation existing under the laws of Ontario and has the necessary corporate authority, power and capacity to own its interest in the Property and to enter into this Agreement and carry out the Transaction contemplated by this Agreement on the terms and conditions herein contained;
(ii) this Agreement has been duly authorized by all corporate action required to be taken by the Vendor and constitutes a legal, valid and binding obligation of the Vendor, enforceable in accordance with its terms;
(iii) the Vendor is the registered sole legal and beneficial owner of a 100% fee simple interest in the Property, is in lawful, exclusive and peaceable possession of the Property and has the power right to dispose of convey the same free Property and clear of all encumbrances save for reservations in to complete the original grant for Transaction as contemplated herein on the crownClosing Date;
(b) the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part of the Vendor;
(civ) there are no present claims options to purchase (other than the Option Agreement), rights of first refusal or litigation pending or to the Vendor's knowledge, any claims or litigation threatened other purchase rights with respect to the Vendor, the Property or the occupancy any part thereof that have not expired or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunderbeen waived;
(dv) the Vendor is not aware of any expropriation Person that claims or may be entitled to claim a lien against the Property under the Construction Act (Ontario) or any similar legislation.
(vi) so far as the Vendor is aware, there are no easements, rights of way, licences or other proceedings by rights in the City nature of Vancouver easements affecting the Property other than those registered against title to the Property (if any);
(vii) to the best of the Vendor’s knowledge and belief, no Hazardous Substance has been stored, treated or disposed of on the Property and there are no underground storage tanks on the Property; the Vendor has not received notice of and has no knowledge or information of any pending, contemplated or threatened judicial, administrative or other action relating to the existence of a Hazardous Substance on or affecting the Property and has no reason to believe that any cause of action for such exists; and the Vendor has never used the Property as a waste disposal site.
(viii) to the best of the Vendor’s knowledge and belief, there are no Hazardous Substances located in, on, under or migrating to or from the Property;
(ix) the Vendor has not received any notice of expropriation of any part of the Property and is not aware of any proposed expropriation;
(x) there are no leases (registered on unregistered), offers to lease, agreements to lease, tenancy agreements or rights of occupation or possession with respect to all or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size part of the Property, the use of the Property or access any unregistered agreements affecting title to the Property;
(exi) on to the Completion Date Vendor’s knowledge, there are no First Nations claims to the Property;
(xii) the Vendor has not received notice and is not aware of any pending or threatened litigation or of any other judicial or administrative proceeding affecting the Property including, without limitation, in any way relating to the use and occupation of the Property;
(xiii) to the Vendor’s knowledge, the Property has not been used as a cemetery;
(xiv) the Vendor has not received notice of and is not aware of any claims adverse to the title of the Vendor to the Property and there are no outstanding disputes with respect to the boundaries of the Property with any abutting owner;
(xv) the Vendor has not received any notice of and is not aware of any outstanding work orders, deficiency notices, orders to comply or directives against the Property or any part thereof;
(xvi) at least one boundary of the Property abuts a public highway or municipal roadway, there is open, legal access to the Property, and, to the best of the Vendor’s knowledge and belief, there is no reason that the Purchaser will not have be able to obtain from the applicable municipality full and uninterrupted ingress and egress to and from the Property at least one location approved by the municipality;
(xvii) the Vendor has no knowledge of any indebtedness pending or proposed zoning or other by-law, amendment to the Official Plan, or other proposed regulatory changes which could adversely affect the Property or the use thereof;
(xviii) the boundaries of the Property or any person part or governmental authority which parts thereof do not conflict with those of adjoining properties, there are no encroachments onto the Property from any adjoining properties and there are no encroachments by operation of law or otherwise then constitutes a lien, charge or encumbrance any structures on the Property onto any adjoining properties or which could affect onto a road or lane, or onto any part of the Property subject to an easement or right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrancesway;
(fxix) except save only as disclosed set out in the environmental reports and to the best knowledge of the VendorSchedule B hereto, the Property does is not contain subject to any site plan agreement, collateral agreement, development agreement, subdivision agreement, engineering agreement, servicing agreement, financial agreement or have cost-sharing agreement, and is not subject to any other agreement, restriction (whetherimposed privately, by a history public body or authority or otherwise) or interim or holding by-law which would prohibit or adversely affect or restrict the contemplated development of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanksthe Property by the Purchaser;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(hxx) the Vendor is not now and shall not on the Closing Date be a non-resident of Canada within the meaning of ascribed thereto in the Income Tax ActAct (Canada);
(ixxi) The Vendor has not committed any act of bankruptcy nor is it an insolvent person (as such term is defined by the Bankruptcy and Insolvency Act (Canada)), and no petition or receiving order has been filed against the Vendor and no proceedings for a composition with or proposal to the creditors of the Vendor or for the winding- up, liquidation or other dissolution of the Vendor has been instituted by or against the Vendor under any provincial or federal law;
(xxii) the Vendor shall not enter into has paid or will have paid prior to the Closing Date any lease negotiations for and all levies, imposts, local improvement charges, development charges or other payments imposed by the municipality or by any part other Governmental Authority having jurisdiction in respect of development of the Property nor alter any Leases without the prior written consent of the Purchaserand, if applicable, other lands;
(jxxiii) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to Vendor is not in default under any use or occupation of the Property existing as of the date of acceptance of this Offer by the VendorPermitted Encumbrances; and
(kxxiv) all of the LeasesVendor Deliveries delivered or made available to the Purchaser by the Vendor pursuant to Section 3.1 are true copies in the possession or control of the Vendor, and to the Vendor's ’s knowledge, are validdo not contain any material misstatements, subsisting inaccuracies or omissions and enforceable comprise all relevant materials in accordance with their terms; and there are no existing disputes between the possession or control of the Vendor relating to the Property and no representation by the Vendor in this Agreement contains any one untrue statement of fact, or more of omits to state any fact necessary to make the tenants under such Leases statement not misleading, and the Vendor has not received omitted to disclose or make available any notice from any tenant information of such Leases alleging any default by which the Vendor or requiring has actual knowledge in connection with the Property that might reasonably affect the Purchaser’s decision to complete purchase of the Property pursuant to this Agreement; and
(xxv) the Vendor to take has not retained the services of any action not takenreal estate broker or agent in connection with the sale of the Property [NTD: if a broker was retained, insert “other than [brokerage name]”].
(b) The representations and warranties that are made herein are true, accurate and complete as at the Acceptance Date and shall be true, accurate and complete as at the Closing Date. The Vendor agrees that such representations and warranties shall survive the closing of this transaction for a period of [insert] years after the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(a) The Vendor has been duly incorporated and organized as a corporation under the laws of Utah and is a valid and subsisting corporation in good standing and to the extent required has all necessary powers, licenses, permits and authority (all of which are in full force and effect and in good standing) to own the Purchased Assets and to complete the transactions provided for in this agreement.
(b) The Vendor is has good and marketable title to the registered and beneficial owner of the Property and has the power to dispose of the same Purchased Assets free and clear of all encumbrances save any claim, lien, charge or encumbrance whatever, except for reservations in the original grant for the crown;
(b) the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part usual ownership rights of the Vendor;owners of the software that are the subject of the Software Licenses.
(c) Except as set out on Schedule E attached hereto or as disclosed in the most recent annual and/or interim financial statements of the Vendor (the "Financial Statements"), there has not occurred since the date of such Financial Statements:
(i) any material adverse change in the Purchased Assets;
(ii) any damage, destruction or loss having a material adverse effect on the Purchased Assets; or
(iii) any condition or event or a threat thereof which does, or reasonably might, have a material adverse affect on the Purchased Assets.
(d) Except as set out on Schedule E attached hereto or as disclosed in the Financial Statements, the Vendor has not directly or indirectly since the date of such Financial Statements:
(i) subjected any of the Purchased Assets to any mortgage, lien, pledge, conditional sales contract, lease, encumbrance, charge or similar limitation;
(ii) acquired, sold or otherwise transferred any of the Purchased Assets other than in the ordinary course of business;
(iii) entered into any agreement regarding the Purchased Assets not in the ordinary course of business;
(iv) modified, amended, or terminated any agreement or waived or released any material right regarding the Purchased Assets other than in the ordinary course of business;
(v) except in the ordinary course of business, increased the salaries, fringe benefits or other compensation of or paid any bonuses or similar compensation to any of its employees who are employed in the Business or given general salary or wage increases to such employees; or
(vi) agreed to do any of the things described in (i) through (v) above.
(e) Within the times and in the manner prescribed by law the Vendor has filed all tax returns required by law. Such returns were materially correct and complete and the Vendor has paid the taxes due and payable as reflected on said returns. The provisions for taxes reflected in the Financial Statements are adequate for all tax liabilities whether or not yet due and payable and whether or not disputed. The Vendor has no present claims material liability for any taxes, or litigation pending any interest or penalties in respect thereof, of any nature other than those described in the Financial Statements or arising in the ordinary course of business since the date of such Financial Statements. The Vendor is up-to-date and current in the payment of all required installments of tax including income tax (federal and state) and employee source deductions.
(f) Attached hereto as Schedule F is a true and complete list of all the employees of the Vendor employed in respect of the Business together with their respective positions, years of employment and rates of remuneration and all of said employees who are currently disabled or who claimed disability benefits during the preceding twelve months. Those employees with written employment agreements are indicated on Schedule E and copies of such agreements have been provided to the Purchaser. Except as disclosed on Schedule E, the Vendor has no collective bargaining or other labor agreements, pension, bonus, profit sharing, stock option, deferred compensation, retainer, consulting, retirement, commissions or other material fringe benefits, contracts or agreements.
(g) Listed on Schedule G attached hereto are all patents, patent licenses, patent applications or registered copyrights of the Vendor in respect of the Business. To the best of the Vendor's knowledge, it has not infringed and is not now infringing upon any claims patents, patent licenses, patent applications, copyrights or litigation threatened with respect trade secrets belonging to any other person and no person has alleged such infringement during the Vendorlast twelve months, or is currently maintaining an allegation of, such infringement.
(h) Neither the Property or execution of this agreement nor the occupancy or use thereof by the Vendor which could materially affect the right consummation of the Purchaser to owntransactions contemplated hereby will result in any breach of any term or provision of, occupy or obtain revenue from constitute a default under the Property articles or materially affect the ability by-laws of the Vendor or under any commitment or other agreement to perform its obligations hereunder;
(d) which the Vendor is not aware of any expropriation a party or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Propertyit is bound, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in any Schedule attached hereto or will result in the environmental reports and to the best knowledge creation or imposition of any lien or encumbrance upon any of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax Act;
(i) the Vendor shall not enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not takenPurchased Assets.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(a) The Vendor has been duly incorporated and organized as a corporation under the laws of Utah and is a valid and subsisting corporation in good standing and to the extent required has all necessary powers, licenses, permits and authority (all of which are in full force and effect and in good standing) to own the Purchased Assets and to complete the transactions provided for in this agreement.
(b) The Vendor is has good and marketable title to the registered and beneficial owner of the Property and has the power to dispose of the same Purchased Assets free and clear of all encumbrances save any claim, lien, charge or encumbrance whatever, except for reservations in the original grant for the crown;
(b) the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part usual ownership rights of the Vendor;owners of the software that are the subject of the Software Licenses.
(c) Except as set out on Schedule E attached hereto or as disclosed in the most recent annual and/or interim financial statements of the Vendor (the "Financial Statements"), there has not occurred since the date of such Financial Statements: 4
(i) any material adverse change in the Purchased Assets;
(ii) any damage, destruction or loss having a material adverse effect on the Purchased Assets; or
(iii) any condition or event or a threat thereof which does, or reasonably might, have a material adverse affect on the Purchased Assets.
(d) Except as set out on Schedule E attached hereto or as disclosed in the Financial Statements, the Vendor has not directly or indirectly since the date of such Financial Statements:
(i) subjected any of the Purchased Assets to any mortgage, lien, pledge, conditional sales contract, lease, encumbrance, charge or similar limitation;
(ii) acquired, sold or otherwise transferred any of the Purchased Assets other than in the ordinary course of business;
(iii) entered into any agreement regarding the Purchased Assets not in the ordinary course of business;
(iv) modified, amended, or terminated any agreement or waived or released any material right regarding the Purchased Assets other than in the ordinary course of business;
(v) except in the ordinary course of business, increased the salaries, fringe benefits or other compensation of or paid any bonuses or similar compensation to any of its employees who are employed in the Business or given general salary or wage increases to such employees; or
(vi) agreed to do any of the things described in (i) through (v) above.
(e) Within the times and in the manner prescribed by law the Vendor has filed all tax returns required by law. Such returns were materially correct and complete and the Vendor has paid the taxes due and payable as reflected on said returns. The provisions for taxes reflected in the Financial Statements are 5 adequate for all tax liabilities whether or not yet due and payable and whether or not disputed. The Vendor has no present claims material liability for any taxes, or litigation pending any interest or penalties in respect thereof, of any nature other than those described in the Financial Statements or arising in the ordinary course of business since the date of such Financial Statements. The Vendor is up-to-date and current in the payment of all required installments of tax including income tax (federal and state) and employee source deductions.
(f) Attached hereto as Schedule F is a true and complete list of all the employees of the Vendor employed in respect of the Business together with their respective positions, years of employment and rates of remuneration and all of said employees who are currently disabled or who claimed disability benefits during the preceding twelve months. Those employees with written employment agreements are indicated on Schedule E and copies of such agreements have been provided to the Purchaser. Except as disclosed on Schedule E, the Vendor has no collective bargaining or other labor agreements, pension, bonus, profit sharing, stock option, deferred compensation, retainer, consulting, retirement, commissions or other material fringe benefits, contracts or agreements.
(g) Listed on Schedule G attached hereto are all patents, patent licenses, patent applications or registered copyrights of the Vendor in respect of the Business. To the best of the Vendor's knowledge, it has not infringed and is not now infringing upon any claims patents, patent licenses, patent applications, copyrights or litigation threatened with respect trade secrets belonging to any other person and no person has alleged such infringement during the Vendorlast twelve months, or is currently maintaining an allegation of, such infringement.
(h) Neither the Property or execution of this agreement nor the occupancy or use thereof by the Vendor which could materially affect the right consummation of the Purchaser to owntransactions contemplated hereby will result in any breach of any term or provision of, occupy or obtain revenue from constitute a default under the Property articles or materially affect the ability by-laws of the Vendor or under any commitment or other agreement to perform its obligations hereunder;
(d) which the Vendor is not aware of any expropriation a party or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Propertyit is bound, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in any Schedule attached hereto or will result in the environmental reports and to the best knowledge creation or imposition of any lien or encumbrance upon any of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax Act;
(i) the Vendor shall not enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not takenPurchased Assets.
Appears in 1 contract
Sources: Memorandum of Agreement (Cell Pathways Holdings Inc)
Vendor’s Representations and Warranties. The Vendor QLT hereby represents and warrants to the Purchaser, with the intent regardless of any independent investigations that the Purchaser shall rely thereon inmay cause to be made, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(a) QLT is a duly incorporated and validly existing company in good standing under the Vendor is the registered and beneficial owner laws of the Property Province of British Columbia and has the corporate power and capacity to dispose of the same free and clear of all encumbrances save for reservations own its interest in the original grant for the crownProperties and to carry on its business;
(b) each Nominee is a duly incorporated and validly existing company in good standing under the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part laws of the VendorProvince of British Columbia and has the corporate power and capacity to hold legal title to the Lot F Property, in the case of the Lot F Nominee, and the Lot 1 Property, in the case of the Lot 1 Nominee, in trust for QLT and to carry on its business;
(c) there none of QLT nor the Nominees are no present claims or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(d) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax ActAct (Canada);
(d) by the Closing Date, all necessary corporate action on the part of the Vendors will have been taken to authorize and approve the completion of the transactions contemplated by this Agreement;
(e) none of the Vendors has any indebtedness or liability to any person, firm or corporation that might now or hereafter constitute a lien, charge or encumbrance on the Purchased Assets or that would affect the Purchaser’s right, from and after the Closing Date, to own, occupy (subject to the Leases and the QLT Lease) and obtain revenue from the Properties, other than Permitted Encumbrances;
(f) subject to obtaining any required consents to the assignment of the Approved Service Contracts, neither the execution of this Agreement nor the completion of the transactions contemplated hereby will conflict with or result in a breach of the respective constating documents of any of the Vendors nor constitute a breach of, default under, or acceleration of any obligation under, or constitute any event which, with the giving of notice or lapse of time or otherwise, would constitute a breach of, default under, or acceleration of any obligation under, any indenture, mortgage, deed of trust or any other agreement to which any of the Vendors is a party or by which any of them is bound or to which any of their assets are subject (including the Declarations of Trust);
(g) there is no action, suit, claim, arbitration, judgment, investigation or proceeding outstanding or pending or, to the knowledge of the Vendors, threatened against or affecting any of the Vendors and pertaining to the Purchased Assets or any part thereof at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or authority;
(h) QLT has a good and marketable beneficial title to the Properties, legal title to which is held by the Lot F Nominee, in the case of the Lot F Property, and by the Lot 1 Nominee, in the case of the Lot 1 Property, each as nominee and bare trustee for QLT pursuant to the Declarations of Trust, free and clear of all liens, charges and encumbrances except the Permitted Encumbrances;
(i) the Vendor shall Permitted Encumbrances described in Schedule C are in full force and effect and have not enter into any lease negotiations for any part been further amended, none of the Property nor alter any Leases without Vendors is in default thereunder, no other party is, to the prior written consent knowledge of the PurchaserVendors, in default thereunder and there are no existing disputes thereunder;
(j) all municipal taxes, local improvement taxes, rates, levies and assessments of every nature and kind with respect to the Properties for the 2007 calendar year and all preceding calendar years, have been paid in full and, except as provided in the Permitted Encumbrances described in Schedule C, none of the Vendors has, in connection with the Properties, any present or future obligation to pay monies to any statutory authority in connection with off-site roads, services, utilities or similar services or to construct or provide off-site roads, services, utilities or similar services in connection with the Properties;
(k) none of the Vendors is a party to or bound by any collective bargaining agreements or any agreements with a trade union by which the Purchaser will be bound by virtue of acquiring the Purchased Assets, and there are no employees of the Vendors with respect to whom the Purchaser will assume or incur any responsibility or liability by virtue of acquiring the Purchased Assets;
(l) with respect to the Properties:
(i) to the best of the knowledge of the Vendors, the Building is not subject to any outstanding work order or notice of defect or non-compliance from any provincial or municipal board or official or Board of Fire Underwriters or like authority;
(ii) except as disclosed in the Project Documents, none of the Vendors has received any Notice from any governmental authority of non-compliance with respect to Environmental Laws;
(iii) except as disclosed in the Project Documents, the Vendors have not at any time received, handled, generated, used, stored, deposited, treated, transported or disposed of any Hazardous Waste on the Lot F Property, the Lot 1 Property or within the Building except in compliance with all applicable Environmental Laws; and
(iv) except as disclosed in the Project Documents, none of the Vendors has received any Notice from any governmental authority that requires any remedial action to be conducted or any works to be undertaken with respect to environmental contamination of the Lot F Property, the ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇;
(▇) the Included Chattels are free and clear of all liens, charges and encumbrances;
(n) none of the Vendors has received any Notice from any governmental authority or has any knowledge of any intention of any statutory authority to expropriate all or any part of the Properties;
(o) none of the Vendors has received any Notice from any governmental authority of any intention of the applicable municipal authority to alter its zoning bylaw or official community plan, if any, so as to affect or potentially affect in a detrimental manner the Properties or the use thereof;
(p) there are no claims, actions or proceedings pending or, to the knowledge of the Vendors, threatened, in law or in equity, that would materially interfere with the use and enjoyment of the Properties or the occupancy or use of all or any part of the Properties by the Purchaser or any Tenant or QLT under the QLT Lease or that could affect the Purchaser’s right to own, occupy and obtain revenue from the Properties;
(q) with respect to the Leases:
(i) the Leases are the only constitute all leases, agreements to lease, offers and other rights in existence on the date of this Agreement, either written or oral, under which any person, firm or corporation has any right to lease, licences or occupations or use, whether oral or written, relating to any use or occupation occupy any portion of the Lot F Property existing or the Building in the nature of a tenancy or licence and all Tenants are at arm’s length from the Vendors;
(ii) save for the current month’s rent, there are no deposits, prepaid rents or other prepaid expenses which have been received from any Tenants except as set forth in the Project Documents;
(iii) the copies of the date of acceptance of this Offer by Leases which the Vendor; andVendors will be making available to the Purchaser for review are true copies thereof;
(kiv) the LeasesLeases are good, valid and subsisting and enforceable against the Tenants, and are, to the Vendor's knowledgebest of the knowledge of the Vendors, are validin good standing except as specifically set forth in the Project Documents, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor thereunder, and any one or more none of the tenants under such Leases and the Vendor Vendors has not received any notice from any tenant of such Leases Tenant alleging any default by the Vendor Vendors or requiring the Vendor Vendors to take any action not taken, and except as set forth in the Project Documents the Leases have not been modified, extended, renewed or, to the knowledge of the Vendors assigned by any Tenant, and the Leases constitute the whole of the respective agreements of the Vendors or any of them with the Tenants with respect to the occupancy of the Lot F Property and the Building by the Tenants;
(v) the Vendors have observed and performed in substantially all respects all of the landlord’s covenants set forth in the Leases;
(vi) neither the Leases nor the rents payable under them have been assigned by the Vendors and none of the Tenants have any presently enforceable rights or claims to set off or abatement with respect to future rents except as set forth in the Leases;
(vii) none of the Tenants are entitled to any capital contributions, tenant allowances, inducements, or concessions which have not been fully paid or satisfied by the Vendors except as set forth in the Project Documents, and none of the Vendors is obliged to pay any Tenants for improvements, fixtures or equipment during or on termination of any term or renewal thereof except as set forth in the Leases;
(viii) the Tenants have each taken possession of the premises demised by their respective Leases and are paying regular instalments of monthly rent in accordance with the terms of their respective Leases; and
(ix) none of the Vendors has received any Notice indicating that the Tenants do not operate their premises and their businesses within the Lot F Property and the Building pursuant to all validly issued and required licences and entirely in accordance with all lawful requirements of all applicable statutory authorities;
(r) the Service Contracts which the Vendors will deliver to the Purchaser pursuant to Section 3.1 constitute all of the Service Contracts respecting the Properties and set forth the whole of the agreements between the Vendors or any of them and the other parties thereto and there is no default thereunder;
(s) the operating budget, operating expense summaries and capital improvement summaries included with the Project Documents present fairly the expenses relating to the Properties for the periods reported on;
(t) the Lot F Nominee has no beneficial interest in the Lot F Property and has carried on no business or activity of any kind whatsoever other than holding legal title to the Lot F Property in trust for QLT and dealing with the Lot F Property on behalf of and as directed by QLT, and the Lot 1 Nominee has no beneficial interest in the Lot 1 Property and has carried on no business or activity of any kind whatsoever other than holding legal title to the Lot 1 Property in trust for QLT and dealing with the Lot 1 Property on behalf of and as directed by QLT;
(u) the aggregate value of the Purchased Assets, determined in relation to the transactions contemplated by this Agreement as of the time and in the manner prescribed by the Notifiable Transactions Regulations pursuant to the Competition Act, is less than $50,000,000;
(v) QLT is the sole beneficial owner of the Shares and such Shares are free and clear of all liens, charges, options and encumbrances except any of the nature described in subsection (f) of the definition of Permitted Encumbrances;
(w) no person has any rights to acquire any shares in the capital of the Nominees, except for the Purchaser under this Agreement;
(x) the Nominees have not filed tax returns for Income Tax, Capital Tax or GST, have no liability for payment of any such taxes, and no assessment for such taxes has ever been levied against either of the Nominees;
(y) on the Closing Date, the Lot F Nominee will have no assets other than bare legal title to the Lot F Property, and will have no liabilities except:
(i) liabilities for the current year’s property taxes and other assessments with respect to the Lot F Property which are the responsibility of QLT as beneficial owner of the Lot F Property and are adjusted pursuant to Article 6 on the Closing Date;
(ii) liabilities under the Permitted Encumbrances relating to the Lot F Property;
(iii) liabilities to the Purchaser under this Agreement; and
(iv) liabilities incurred with respect to the Lot F Property as registered owner thereof (subject to the other provisions of this Agreement including the other provisions of this Section 8.1 and Section 8.3);
(z) on the Closing Date, the Lot 1 Nominee will have no assets other than bare legal title to the Lot 1 Property, and will have no liabilities except:
(i) liabilities for the current year’s property taxes and other assessments with respect to the Lot 1 Property which are the responsibility of QLT as beneficial owner of the Lot 1 Property and are adjusted pursuant to Article 6 on the Closing Date;
(ii) liabilities under the Permitted Encumbrances relating to the Lot 1 Property;
(iii) liabilities to the Purchaser under this Agreement; and
(iv) liabilities incurred with respect to the Lot 1 Property as registered owner thereof (subject to the other provisions of this Agreement including the other provisions of this Section 8.1 and Section 8.3); and
(aa) there is no action or proceeding of any kind pending or, to the knowledge of QLT, threatened against any of the Vendors which might materially affect the ability of QLT to carry out the terms of this Agreement.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor QLT hereby represents and warrants to the Purchaser, with the intent regardless of any independent investigations that the Purchaser shall rely thereon inmay cause to be made, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(a) QLT is a duly incorporated and validly existing company in good standing under the Vendor is the registered and beneficial owner laws of the Property Province of British Columbia and has the corporate power and capacity to dispose of the same free and clear of all encumbrances save for reservations own its interest in the original grant for the crownProperties and to carry on its business;
(b) each Nominee is a duly incorporated and validly existing company in good standing under the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part laws of the VendorProvince of British Columbia and has the corporate power and capacity to hold legal title to the Lot F Property, in the case of the Lot F Nominee, and the Lot 1 Property, in the case of the Lot 1 Nominee, in trust for QLT and to carry on its business;
(c) there none of QLT nor the Nominees are no present claims or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(d) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax ActAct (Canada);
(d) by the Closing Date, all necessary corporate action on the part of the Vendors will have been taken to authorize and approve the completion of the transactions contemplated by this Agreement;
(e) none of the Vendors has any indebtedness or liability to any person, firm or corporation that might now or hereafter constitute a lien, charge or encumbrance on the Purchased Assets or that would affect the Purchaser’s right, from and after the Closing Date, to own, occupy (subject to the Leases and the QLT Lease) and obtain revenue from the Properties, other than Permitted Encumbrances;
(f) subject to obtaining any required consents to the assignment of the Approved Service Contracts, neither the execution of this Agreement nor the completion of the transactions contemplated hereby will conflict with or result in a breach of the respective constating documents of any of the Vendors nor constitute a breach of, default under, or acceleration of any obligation under, or constitute any event which, with the giving of notice or lapse of time or otherwise, would constitute a breach of, default under, or acceleration of any obligation under, any indenture, mortgage, deed of trust or any other agreement to which any of the Vendors is a party or by which any of them is bound or to which any of their assets are subject (including the Declarations of Trust);
(g) there is no action, suit, claim, arbitration, judgment, investigation or proceeding outstanding or pending or, to the knowledge of the Vendors, threatened against or affecting any of the Vendors and pertaining to the Purchased Assets or any part thereof at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or authority;
(h) QLT has a good and marketable beneficial title to the Properties, legal title to which is held by the Lot F Nominee, in the case of the Lot F Property, and by the Lot 1 Nominee, in the case of the Lot 1 Property, each as nominee and bare trustee for QLT pursuant to the Declarations of Trust, free and clear of all liens, charges and encumbrances except the Permitted Encumbrances;
(i) the Vendor shall Permitted Encumbrances described in Schedule C are in full force and effect and have not enter into any lease negotiations for any part been further amended, none of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leasesVendors is in default thereunder, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leasesno other party is, to the Vendor's knowledgeknowledge of the Vendors, are valid, subsisting and enforceable in accordance with their terms; default thereunder and there are no existing disputes between thereunder;
(j) all municipal taxes, local improvement taxes, rates, levies and assessments of every nature and kind with respect to the Vendor Properties for the 2007 calendar year and any one or more all preceding calendar years, have been paid in full and, except as provided in the Permitted Encumbrances described in Schedule C, none of the tenants under such Leases Vendors has, in connection with the Properties, any present or future obligation to pay monies to any statutory authority in connection with off-site roads, services, utilities or similar services or to construct or provide off-site roads, services, utilities or similar services in connection with the Properties;
(k) none of the Vendors is a party to or bound by any collective bargaining agreements or any agreements with a trade union by which the Purchaser will be bound by virtue of acquiring the Purchased Assets, and there are no employees of the Vendor Vendors with respect to whom the Purchaser will assume or incur any responsibility or liability by virtue of acquiring the Purchased Assets;
(l) with respect to the Properties:
(i) to the best of the knowledge of the Vendors, the Building is not subject to any outstanding work order or notice of defect or non-compliance from any provincial or municipal board or official or Board of Fire Underwriters or like authority;
(ii) except as disclosed in the Project Documents, none of the Vendors has not received any notice Notice from any tenant governmental authority of such Leases alleging non-compliance with respect to Environmental Laws;
(iii) except as disclosed in the Project Documents, the Vendors have not at any default by time received, handled, generated, used, stored, deposited, treated, transported or disposed of any Hazardous Waste on the Vendor Lot F Property, the Lot 1 Property or requiring within the Vendor Building except in compliance with all applicable Environmental Laws; and
(iv) except as disclosed in the Project Documents, none of the Vendors has received any Notice from any governmental authority that requires any remedial action to take be conducted or any action not taken.works to be undertaken with respect to environmental contamination of the Lot F Property, the ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇;
Appears in 1 contract
Vendor’s Representations and Warranties. 7.1 The Vendor hereby acknowledges that the Purchaser is relying on the following representations and warranties in connection with the purchase of the Property by the Purchaser. The Vendor hereby represents and warrants to the Purchaser, with as representations and warranties which are true now and will be true from this date to and including the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Closing Date, that as of the date hereof and the Completion Datethat:
(a) the Vendor is and on the Closing Date shall be the sole registered and beneficial owner of the Property and has the power to dispose of the same free and clear of all liens, claims, judgements, charges, caveats and encumbrances whatsoever save for reservations in and except the original grant for Permitted Encumbrances, and that the crownVendor has the full right and authority to transfer valid title to the Property to the Purchaser;
(b) the execution and delivery of this Offer does not conflict with any other agreement binding Vendor shall transfer to the Purchaser on the Vendor Closing Date title to the Property free and will have beenclear of all liens, by claims, judgements, charges, caveats, and encumbrances whatsoever, save and except the Completion Date, duly authorized by all necessary corporate action on the part of the VendorPermitted Encumbrances;
(c) all civic and municipal taxes, rates, levies and assessments whatsoever then due and owing with respect to the Property shall be paid in full on the Closing Date or shall be the subject of the adjustment of the Purchase Price contemplated by section 4.3 above;
(d) paragraph intentionally deleted
(e) the Building has been maintained in working order and is not subject to any outstanding work order or notice of defect or non-compliance from any provincial, civic or municipal board or official or Board of Fire Underwriters or like authority;
(f) paragraph intentionally deleted
(g) the Vendor possesses all necessary licenses, permits, agreements and other rights to lease and operate the Property as currently operated and in accordance with environmental laws and that all terms and conditions of any such licences, permits, agreements and other rights have been duly complied with and are in good standing;
(h) to its knowledge the Vendor has complied with all governmental laws, ordinances, by-laws and regulations affecting the Lands and the Property and is not in default of any of the same and has had no notice from any governmental authorities to change, modify or alter any licences, conditions of operating, building structure or otherwise which could affect the use or operation of the Lands or the Property and paid all monies due and payable under all agreements relating to the development, management and operation of the Property;
(i) paragraph intentionally deleted
(j) paragraph intentionally deleted
(k) there are is no present claims claim or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy own or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(d) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(el) to the Vendor's knowledge there is no proceeding by or before any governmental commission, department, board, authority or other administrative officer pending or threatened which could affect the right of the Purchaser to own or use the Property;
(m) there is no collective bargaining agreement or certification before any labour authority or board affecting any employees employed by the Vendor in connection with the Property;
(n) to the Vendor's knowledge, and except as reflected in any environmental reports or materials provided to the Purchaser, the Property is free of any explosives, radioactive materials, asbestos materials, urea formaldehyde, underground or aboveground tanks, pollutants, contaminants, deleterious substances, dangerous goods or substances, hazardous, corrosive or toxic substances, special waste or waste of any kind or any other substance the storage, manufacture, disposal, handling, treatment, generation, use, transport, remediation or release into the environment of which is prohibited, controlled or regulated under any federal, provincial, municipal or other governmental authority (herein called "Contaminants") . The Purchaser acknowledges that it will be responsible for the environmental matters disclosed in the Phase I environmental report which is being provided to the Purchaser by the Vendor, including without limitation the direct and indirect costs involved in any required remediation of such environmental matters. The Purchaser also hereby waivers any rights it may have to receive a site profile from the Vendor pursuant to the provisions of the Waste Management Act of British Columbia;
(o) to its knowledge, and except as reflected in any environmental reports or materials provided to the Purchaser, the Vendor has not used or permitted the Property to be used, and has no knowledge of the Property being used, for the storage, manufacture, disposal, treatment, handling, generation or release into the environment, including by way of discharge, emission, spill, deposit, leakage or otherwise, of any Contaminants, for waste disposal or landfill purposes or for any other purpose which may result or has resulted in Contaminants in, on, under or migrating to or from the Property;
(p) the Vendor has fully disclosed to the Purchaser all environmental reports, investigations, assessments, audits, studies, permits, licences and records in the possession or control of the Vendor with respect to the Property and relating to Contaminants or environmental laws and the Vendor has not obtained or performed any environmental reports, investigations, assessments, audits or other studies with respect to the Property except as disclosed in writing to the Purchaser.
(q) that all wages due and payable to employees of the Vendor employed in connection with the Property have been paid;
(r) the Vendor hereby authorizes the Purchaser to submit development permit and building permit applications pertaining to its intended redevelopment of the Property and will execute specific authorizations in writing in a timely manner if requested by the Purchaser;
(s) that on the Completion Closing Date the Vendor will shall not have any indebtedness to any person person, business, company or governmental government authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(ft) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) that the Vendor is not a non-resident of Canada within for the meaning purposes of the Income Tax ---------- Act;
(i) the Vendor shall not enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not taken.R.S.
Appears in 1 contract
Sources: Offer to Purchase (Vidatron Entertainment Group Inc)
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datefollows:
(a) the Vendor is duly incorporated, amalgamated, or continued, validly existing, and in good standing with respect to the registered filing of annual reports under the laws of its jurisdiction of incorporation, amalgamation, or continuance, and has all necessary corporate power, authority and capacity to own the Purchased Shares and to carry on its business as presently conducted;
(b) each of the Subsidiaries is duly incorporated, amalgamated, or continued, validly existing, and in good standing with respect to the filing of annual reports under the laws of its jurisdiction of incorporation, amalgamation, or continuance, and has all necessary corporate power, authority and capacity to own the Projects and to carry on the Business as presently conducted;
(c) the authorized and issued share capital of each Subsidiary together with the number, class and kind of shares issued and outstanding in respect of each Subsidiary are as set forth on Schedule “C” hereto;
(d) the only subsidiaries of Mexgold are CM del Cubo, AGCH and Metales, and the Vendor and Mexgold own and have good title to all the shares set forth in Schedule “C” as the legal and beneficial owner of the Property and has the power to dispose of the same thereof, free and clear of all encumbrances save for reservations in Encumbrances (other than the original grant for Bank Encumbrance), and all of the crownoutstanding shares of each Subsidiary have been duly and validly issued and are outstanding as fully paid and non-assessable shares;
(e) the Vendor has due and sufficient right and corporate authority to enter into this Agreement on the terms and conditions set forth and the Vendor will on the Closing Date, have, due and sufficient right and corporate authority to transfer the legal and beneficial title and ownership of the Purchased Shares to the Purchaser as contemplated herein;
(f) except for the Purchaser pursuant to this Agreement and except pursuant to the Bank Encumbrance, no Person has any agreement, right or option, present or future, contingent, absolute or capable of becoming an agreement, right or option or which with the passage of time or the occurrence of any event could become an agreement, right or option:
(i) to require any Subsidiary to issue any shares or other securities in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in its capital;
(ii) for the issue or allotment of any unissued shares in any Subsidiary;
(iii) to require any Subsidiary to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital; or
(iv) to acquire any of the Subsidiaries’ shares, including the Purchased Shares;
(g) each of the Subsidiaries has complied with all Applicable Laws, orders, judgments and decrees except where such non-compliance would, individually or in the aggregate, not have a Material Adverse Effect;
(h) each of CM del Cubo, AGCH and Metales has fully complied with all Applicable Laws regulating Mexican foreign exchange obligations, including obligations relating to (a) any inflow or outflow of funds from or to Mexico, (b) financings received from non- Mexican counterparties, (c) purchase of foreign currency or US-Dollar denominated securities in the execution Mexican foreign exchange market, (d) capital contributions and delivery irrevocable capital contributions, (e) import of this Offer does goods, and (f) reporting requirements, except where the failure to comply would not conflict with have a Material Adverse Effect;
(i) CM del Cubo owns and has good title to the Owned Concessions that form part of the El Cubo Property as the legal and beneficial owner thereof, free of all Encumbrances, except for the Permitted Encumbrances and the Bank Encumbrance;
(j) AGCH owns and has good title or will at Closing own and have good title to the Owned Concessions that form part of the ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Property as the legal and beneficial owner thereof, free of all Encumbrances, except for the Permitted Encumbrances and the Bank Encumbrance;
(k) each of the Subsidiaries has good and sufficient right, title and interest in and to its owned Assets free and clear of all Encumbrances, except (i) Permitted Encumbrances and (ii) the Bank Encumbrances;
(l) other than the Properties, none of the Subsidiaries holds or has any interest in any other agreement binding on mineral properties or mineral assets;
(m) Schedules “A” and “B” hereto set forth a true, correct and complete list and description of all of the Vendor mining concessions owned by AGCH or CM del Cubo, as the case may be, each of which is legally and will beneficially owned by such Subsidiary (the “Owned Concessions”), and a description of all of the mining concessions leased to CM del Cubo (the “Leased Concessions”). None of AGCH or CM del Cubo is party to or bound by any Material Contract other than those referred to in Schedule “E”;
(n) the leases and agreements in respect of the Leased Concessions are in full force and effect;
(o) attached Schedule “F” is a list of all items of the Equipment owned by each Subsidiary. The applicable Subsidiary is the legal and beneficial owner of such Owned Equipment free and clear of all Encumbrances, other than Permitted Encumbrances;
(p) attached as Schedule “F” is a list of all leases relating to any Equipment leased by each Subsidiary as lessee or lessor (the “Equipment Leases”) and such Equipment Leases are in full force and effect;
(q) all Material Contracts are listed in Schedule “E” attached hereto. True and complete copies of all Material Contracts have been, been delivered to the Purchaser by the Completion Date, duly authorized by all necessary corporate action on the part of the Vendor;
(cr) none of the Subsidiaries is party to or bound by any Material Contract except for the Material Contracts listed in the Schedules, all of which are in full force and effect and unamended (unless so indicated in the Schedule), and in respect of which, no default exists on the part of any Subsidiary or, to the best of the knowledge of the Vendor on the part of any of the other parties thereto in each case, giving any party thereto a right to termination, accelerated payment or payment of any penalty fees or other compensation thereunder. The Vendor is not aware of any intention on the part of any of the other parties to any Material Contract to terminate any of them;
(s) Schedule 6.1(s) hereto contains a complete list of the names of all individuals who are employees or individuals engaged on contract to provide employment or similar services for each of the Subsidiaries or the Business (in this section, “employees”);
(t) except for claims by employees under social security legislation which, if adversely determined, would not, either individually or in the aggregate, have a Material Adverse Effect and except as disclosed in Schedule 6.1(t), there are no present written complaints, claims or litigation charges pending or outstanding or, to the best of the knowledge of the Vendor's knowledge, anticipated, nor are there any orders, decisions, directions or convictions currently registered or outstanding by any tribunal or agency against or in respect of any Subsidiary under or in respect of any employment related legislation under Applicable Laws. Except as disclosed in Schedule 6.1(t) ,there are no appeals pending involving any Subsidiary in respect of social security legislation and all levies, assessments and penalties made against any Subsidiary or the Business pursuant to workers’ compensation legislation and which are due and not subject to an appeal have been paid. The Vendor is not aware of any audit currently being performed by any Governmental Authority, and all payments required to be made in respect of termination or severance pay under employment related legislation under Applicable Laws in respect of former employees or employees which are due and payable and not subject to any appeal or legal proceeding have been made;
(u) other than the Union Contract, none of the Subsidiaries has entered into any collective agreement with any labour union or employee association or made any commitments to or conducted any negotiations with any labour union or employee association with respect to any future collective agreement and no other arrangements have been made with, or payments of any kind have been made to, the National Workers’ Union or other union or collective organization of employees or related individuals which are not disclosed in this Agreement;
(v) the Union Contract is in good standing, has not been terminated, amended or assigned, has been extended by agreement between the parties thereto until February 18, 2013 and other than as set forth in Schedule 6.1(t), the Subsidiaries have performed all of their respective covenants, agreements and obligations contained in the Union Contract in all material respects and neither the Subsidiaries nor to the knowledge of the Vendor, the National Workers’ Union, are in default of any provisions thereunder;
(w) all amounts required to be withheld by each Subsidiary from its respective employees’ salaries and to be paid to any governmental body under any statute have been withheld and paid;
(x) except as set forth in Schedule 6.1(t), there are no labour disputes, material grievances, employee claims or litigation actions, strikes or lockouts currently in existence or, to the knowledge of the Vendor, threatened with respect to or against the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunderSubsidiaries;
(dy) all current insurance policies of the Subsidiaries are listed in Schedule “H” hereto;
(z) each of the Subsidiaries hold all authorizations, approvals, orders, licenses, Permits or consents issued by any Governmental Authority which are necessary in connection with the conduct and operation of the Business and the ownership, leasing or use of its Assets as the same are now owned, leased, used conducted or operated except where the failure to hold such authorization, approval, order or license, Permit or consent would not have a Material Adverse Effect (the “Necessary Permits”). All Necessary Permits are listed in Schedule “G” hereto;
(aa) the mining concessions listed in Schedules “A” and “B” hereto have been validly located and are duly recorded and in good standing in accordance with the laws of Mexico and no Subsidiary is subject to any outstanding official communication or remedial order or any written notice in respect of which it has not complied regarding the Owned or Leased Concessions;
(bb) the Subsidiaries have paid all applicable fees and taxes in respect of the mining concessions and surface lands listed in Schedules “A” and “B” hereto which are due and payable by them and all work of sufficient value required by Applicable Laws to be performed by them upon such concessions or fees payable in lieu thereof and all necessary filings in respect thereof, have been duly completed or paid in accordance with Applicable Laws;
(cc) all rentals, payments and obligations (including by way of fees for mineral concessions), royalties, overriding royalty interests and other payments which are due or payable by any Subsidiary on or prior to the date of this Agreement under or with respect to the Properties have been properly and timely paid in all material respects;
(dd) all exploration activities conducted in connection with the Business by or on behalf of any Subsidiary have been undertaken in accordance with good exploration practices and in material compliance with all Applicable Laws, including filing of production reports and other filings required by Applicable Laws, except where such conduct (including any failure to act) would not have a Material Adverse Effect;
(ee) all of the Assets are in good operating condition, fit for their intended use and in a good state of maintenance and repair for equipment of similar age relative to the standards of maintenance and repair maintained by other companies carrying on similar business in Mexico;
(ff) each of the Las ▇▇▇▇▇▇ Lease and the Leased Concessions is in good standing and has not been terminated, amended or assigned and the relevant Subsidiary has observed and performed all of its covenants, agreements and obligations contained in the Las ▇▇▇▇▇▇ Lease and or the Leased Concessions, as applicable, required to be observed or performed by it except where the failure to observe or perform would not have a Material Adverse Effect;
(gg) the Vendor has provided the Purchaser with a true and complete copy of all material Technical Information in its control or possession or in the control or possession of the Subsidiaries, including, without limitation, reports as to estimated aggregate ore reserves and resources of the Properties. There has been no material reduction, and the Vendor is not aware of any expropriation information which will result in a material reduction, in the aggregate amount of reserves or other proceedings by in the City aggregate amount of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size mineralized material of the PropertyProperties from the amounts set forth in such report except for (i) such reductions in reserves that have resulted from production in the ordinary course of business, the use and (ii) such reductions in mineralized material that have resulted from reclassifications of the Property or access mineralized material as reserves. All development and operating plans for all operating mines, mills, processing facilities and refineries related to the PropertyBusiness have been prepared in accordance with good mining practices;
(ehh) each Subsidiary has sufficient right, title or interest in and to sufficient surface rights and such rights of entry and exit to and from the Properties and the surfaces thereof as are necessary to carry on the Completion Date Business in the Vendor will not have any indebtedness to any person or governmental authority manner in which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for it is currently carried on;
(ii) other than the Permitted Encumbrances, none of the Subsidiaries has entered into any agreement to sell, transfer, encumber, or otherwise dispose of or impair its right, title and interest in and to the Properties or the air, surface, entry and easement rights relating to the Properties;
(fjj) except as disclosed in all easements, rights-of-way, and other similar appurtenant interests necessary for the environmental reports and to the best knowledge conduct of the VendorBusiness are in good standing, and all obligations thereunder have been performed in all material respects, and none of the Property does not contain Subsidiaries is in breach or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanksdefault in any material respect under any such Permitted Encumbrance;
(gkk) subject to all of the tailings, tailings ponds, tailings dams, and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred tailings impound areas related to the Purchaser in substantially the same condition as inspected by the Purchaser prior Business are held pursuant to the Subject Removal Date, reasonable wear Las ▇▇▇▇▇▇ Lease and tear exceptedare located on the surface rights to the Properties;
(hll) the Vendor is not Business has been conducted in compliance with all Environmental Laws and all Environmental Permits except where the failure to be in compliance would have a non-resident of Canada within the meaning Material Adverse Effect or where listed in Schedule 6.1(ll). Each of the Income Tax Act;
(i) Subsidiaries has obtained and currently maintains all Environmental Permits required for the Vendor shall not enter into any lease negotiations for any part ownership or operation of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases Business, all such Environmental Permits are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; good standing and there are no existing disputes between Actions or Environmental Notices which have been delivered to the Vendor and or any one Subsidiary or more which are pending or, to the knowledge of the tenants Vendor have been initiated or threatened, to modify or revoke any such Environmental Permit. No Subsidiary is subject to any outstanding Environmental Notice or remedial order or any written notice in respect of which it has not complied, or any claim alleging a violation of Environmental Law, including pursuant to any Release or disposal or in respect of any personal injury, property damage, or damage to the Environment made, asserted or prosecuted by or on behalf of any Governmental Authority or any third party (whether based on negligent acts or omissions, statutory liability, or strict liability without fault or otherwise) other than as listed in Schedule 6.1(ll);
(mm) neither the Vendor nor any Subsidiary has caused or permitted any Hazardous Material to remain, be Released, made subject to disposal or discharged either on, in, over, from or under such Leases the Environment, including the Properties, or to be transported other than in accordance with all Environmental Permits and all Applicable Laws or as listed in Schedule 6.1(ll);
(nn) the Vendor has not received disclosed and made available to the Purchaser all Environmental Notices and remedial orders which any notice from Subsidiary has received, or to which a Subsidiary is or has been made subject. No Subsidiary has been charged with or convicted of an offence for non-compliance with or breach of any tenant Environmental Law nor to the knowledge of such Leases alleging any default by the Vendor or requiring the Vendor is any Subsidiary currently subject to take any action not taken.Environmenta
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the PurchaserPurchaser that:
(1) the Vendor is duly incorporated, with organized and subsisting under the intent that laws of California;
(2) the Vendor has the power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Purchased Assets to the Purchaser shall rely thereon infree and clear of all liens, for a period charges, encumbrances and any other rights of 365 days following others whatsoever;
(3) except as provided in this Agreement, the Completion Date, that as Vendor is the owner of and has good and marketable title to all of the date hereof and Purchased Assets including ownership of the Completion DatePurchased Domain Names as shown by the records of NSI;
(4) Schedule "C" sets forth, separately, all of the following Purchased Intellectual Property:
(a) the that of which Vendor is not the registered exclusive owner or that Vendor owns jointly with a third party, identifying the subject matter, any related registration, and beneficial owner of the Property and has the power to dispose of the same free and clear of all encumbrances save for reservations in the original grant for the crown;limits on ownership by Vendor, and
(b) that Vendor uses pursuant to license or sublicense from a third party, listing the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part of the Vendor;
(c) there are no present claims or litigation pending or to the Vendor's knowledgelicensed Intellectual Property, any claims royalty, license or litigation threatened fee payable with respect to the Vendoruse of such Intellectual Property and any corresponding registration, the Property source of authorization or license and the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunderowner;
(d5) the except as expressly set forth in Schedule "C", Vendor is not aware of a party to any expropriation contract or commitment to pay any royalty, license or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, fee with respect to the use of the Property or access to the PropertyPurchased Assets;
(e6) on except as provided for in Schedule "B", no other Purchased Intellectual Property is registered in the Completion Date name of the Vendor will not or any of its Affiliate nor have any indebtedness to applications been made for registration of any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from Purchased Intellectual Property by the Property save and Vendor or any of its Affiliates;
(7) except for the Permitted Encumbrancesconsent of NSI or such other consents that have otherwise been obtained, no consents are required for Vendor to sell, transfer or assign to Purchaser all of the right, title, benefit and interest of Purchaser in any of the Purchased Assets;
(f) except as disclosed in the environmental reports and 8) to the best of the knowledge of the Vendor, no third party has interfered with, infringed upon, misappropriated, misused, violated or otherwise come into conflict with any of the Purchased Assets or rights to the Purchased Assets;
(9) to the best of the knowledge of the Vendor, the Purchased Assets do not infringe upon, misappropriate, misuse, violate or otherwise come into conflict with any Intellectual Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanksrights of any third party;
(g10) subject Vendor currently has no information, knowledge or belief that any third party has asserted or intends to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred assert any rights to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear exceptedPurchased Domain Names;
(h11) Vendor currently has no outstanding obligations or liabilities, contingent or otherwise, pursuant to any agreement written or oral respecting the Vendor is not a non-resident of Canada within the meaning of the Income Tax ActPurchased Domain Names except for this Agreement;
(i12) the Vendor shall not enter into any lease negotiations for any part of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendor; and
(k) the Leases, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from NSI or any tenant of such Leases alleging other third party that the Purchased Domain Names infringe any default by trademark, trade name, or any other proprietary right; and
(13) no actions, claims or other proceedings are pending or, to Vendor's knowledge, threatened against or affect the Vendor Purchased Assets which, if decided unfavourably, would materially and adversely affect the title to the Purchased Assets, or requiring the Vendor Vendor's ability to take any action not takeneffect the sale and transfer thereof to the Purchaser as contemplated in this Agreement.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor 2.1 In order to induce the Purchaser to enter into and consummate this Agreement, Allwin represents and warrants to the Purchaser, with the intent and acknowledges that the Purchaser shall rely thereon inis relying on such representations and warranties in entering into this Agreement and completing the transactions contemplated hereby, for a period of 365 days following the Completion Date, that as of the date hereof and the Completion Datethat:
(a) the Vendor is Company was duly incorporated under the registered and beneficial owner laws of the Property British Virgin Islands and has the power to dispose of the same free is validly subsisting and clear of all encumbrances save for reservations in the original grant for the crowngood standing thereunder;
(b) the execution Memorandum and delivery Articles of this Offer Association of the Company are as set forth in Schedule "B" attached hereto;
(c) the authorized capital of the Company consists of 50,000,000 common shares without par value, of which 7,000,000 common shares are, or at the Time of Closing will be, duly and validly issued and outstanding, as fully paid, to the parties set out in Schedule "A" attached hereto.
(d) except as provided for in the agreement set out in Schedule "C", the Company does not conflict with currently own, directly or indirectly, any shares or interests in any other agreement binding company or firm;
(e) the Vendors are the legal and beneficial owners of the Allwin Shares and have the right to transfer legal and beneficial title and ownership of the Allwin Shares to the Purchaser, free of all liens, claims, charges, restrictions on transfer, voting agreements, voting trusts, escrow conditions and encumbrances whatsoever;
(f) the Vendors have due and sufficient right and authority to enter into this Agreement on the Vendor terms and will have been, by the Completion Date, duly authorized by conditions herein set out and all necessary corporate action has been taken by or on the part of the Vendor;
(c) there are no present claims or litigation pending or Vendors to authorize the Vendor's knowledgeexecution, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right delivery and performance of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(d) the Vendor is not aware of any expropriation or this Agreement and all other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanksdocuments contemplated hereby;
(g) this Agreement constitutes a valid and legally binding contract, enforceable against the Vendors in accordance with its terms, subject to equitable remedies and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear exceptedrights of creditors generally;
(h) the Vendor is Allwin Shares are not a non-resident subject to or affected by any actual, or, to the best of Canada within the meaning of the Income Tax ActAllwin's knowledge after having made due inquiry, pending or threatened investigation or proceeding by or before, any securities regulatory authority, court, administrative agency or other tribunal;
(i) to the Vendor shall not enter into any lease negotiations for any part best of Allwin's knowledge, the Property nor alter any Leases without the prior written consent of the PurchaserAllwin Shares were originally issued in full compliance with all applicable securities laws;
(j) Allwin does not have any information or knowledge of any material facts pertaining to the Leases are Company which, if known to the only leasesPurchaser, agreements might reasonably be expected to leasedeter the Purchaser from completing the transactions contemplated hereby;
(k) other than the Allwin Shares, offers to leaseno person, licences firm or occupations corporation has any right, agreement or useoption, whether oral or writtenin writing, relating to any use or occupation a right capable of becoming a right, agreement or option:
(i) for the purchase of the Property existing as Allwin Shares,
(ii) for the purchase, subscription or issuance of any of the date unissued shares in the capital of acceptance of this Offer by the Vendor; andCompany, or
(kiii) to require Allwin to purchase, redeem or otherwise acquire the Allwin Shares, except as set out in Schedule "A" attached hereto;
(l) the LeasesCompany has the corporate capacity and power to carry on the business presently carried on by it;
(m) the Company owns, holds, possesses or lawfully uses in the operation of its business all material permits, approvals, waivers, licences or similar authorizations ("Authorizations") of any governmental entity having jurisdiction which are necessary for it to the Vendor's knowledge, conduct its business as presently conducted in compliance with all applicable laws. All such Authorizations are valid, subsisting and enforceable in good standing, the Company is not in material default or breach thereof and, to the best of Allwin's knowledge, no proceeding is pending or threatened to revoke or limit any Authorization. All Authorizations are renewable by their terms or in the ordinary course of business without the need to comply with any special rules or procedures, agree to any materially different terms or conditions or pay any amounts other than routine filing fees. None of the Vendors nor any affiliate thereof owns or has any proprietary, financial or other interest (direct or indirect) in any such Authorization;
(n) the Company is not in material breach of, and the business of the Company is and has been conducted in material compliance with, all applicable statutes, ordinances, bylaws, regulations, decrees or court orders to which it is subject; (o) the unaudited balance sheet of the Company as at July 28, 1998 and the unaudited statement of profit and loss for the period from January 1, 1998 to July 28, 1998 (the "Company's Financial Statements"), which are attached hereto as Schedule "D", are true and correct in every material respect and present fairly the assets, liabilities and the financial position of the Company as at July 28, 1998 in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received any notice from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not taken.United States' generally accepted accounting principles, on a basis consistently applied;
Appears in 1 contract
Sources: Share Exchange Agreement (Dragon Pharmaceuticals Inc)
Vendor’s Representations and Warranties. The Vendor represents and warrants to the PurchaserPurchaser that, with the intent that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that as of at the date hereof of this Agreement and as at the Completion Closing Date:
(a) the Vendor Property is the registered and beneficial owner of the Property and has the power to dispose of the same free and clear of all encumbrances save for reservations accurately described in the original grant for the crownSchedule “A” hereto;
(b) the claims comprising the Property were properly staked, recorded and filed with appropriate governmental agencies and (i) the Property is in good standing under the laws of Newfoundland and Labrador; (ii) all assessment work required to hold the claims comprising the Property has been performed and all governmental fees have been paid and all filings required to maintain the claims comprising the Property in good standing have been properly and timely recorded or filed with appropriate governmental agencies; and (iii) the Vendor has no knowledge of conflicting mineral claims;
(c) the Vendor is the owner of a 100% registered and beneficial right, title and interest in and to the Property and the Property is free and clear of all Liens, other than the Permitted Liens and there is no adverse claim or challenge to ownership of the Property, and there are no outstanding rights or options to acquire or purchase the Property or any third party royalties, net profits interests or similar interests relating to any of the Property, except for the NSR;
(d) there are no outstanding orders or directions relating to environmental matters requiring any work, repairs, construction or capital expenditures with respect to the Property and the conduct of the operations related thereto, and the Vendor has not received any notice of same and is not aware of any basis on which any such orders or direction could be made;
(e) there has been no known spill, discharge, deposit, leak, emission or other release of any hazardous substance on, into, under or affecting any of the Property and no hazardous substance is stored in any type of container on, in or under any of the Property;
(f) the Vendor has complied with all laws applicable to its activities on and in respect of the Property including all directives, rules, consents, permits, orders, guidelines, approvals and policies of all applicable governmental authorities, and without limiting the generality of the foregoing, the Vendor has not used any part of the Property, or permitted any part of the Property to be used to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process hazardous substances, and, to the best of the Vendor’s knowledge and belief, neither has any other person; and no claim comprising the Property is the subject of any investigation by any governmental authority evaluating whether any remedial action is needed to respond to a release of any hazardous substance into the environment;
(g) the Vendor’s ownership of the Property is in compliance with, is not in default or violation in any material respect under, and the Vendor has not been charged with or received any notice at any time of any material violation of any statute, law, ordinance, regulation, rule, decree or other applicable regulation in connection with the Vendor’s ownership of the Property;
(h) the Vendor has duly filed all reports and returns required to be filed with governmental authorities and has obtained all governmental permits and other governmental consents, except as may be required after the execution of this Agreement and all of such permits and consents are in full force and effect, and no proceedings for the suspension or cancellation of any of them, and no investigation relating to any of them, is pending or to the knowledge of the Vendor, threatened, and none of them will be adversely affected by the entry into this Agreement;
(i) there is no adverse claim or challenge against or to the ownership of or title to any part of the Property and, to the knowledge of the Vendor, there is no basis for such adverse claim or challenge which may affect the Property;
(j) the Vendor has the right to enter into this Agreement and to sell the Property in accordance with the terms of this Agreement, there are no disputes over the title to the Property, and no other party has any interest in the Property or the production therefrom or any right to acquire any such interest;
(k) there are no orders or directions relating to environmental matters requiring any work, repairs, construction or capital expenditures with respect to the Property or the conduct of the business related to the Property;
(l) the Vendor does not have notice, or knowledge of, any proposal to terminate or vary the terms of, or rights attaching to the Property from any governmental authority;
(m) the Vendor has all necessary rights to access the Property to conduct exploration activities thereon and there is no fact or condition which would result in the interference with or termination of such access;
(n) to the knowledge of the Vendor, there are no aboriginal rights or interests that are currently asserted in respect of the Property or in respect of the access to or surface rights to the areas covered by the Property;
(o) the Property does not lie in any protected, restricted, reservation area and no land use restriction exists in respect of the Property;
(p) there are no claims, actions, suits, judgments, litigation or proceedings of any nature concerning the Property, nor to the best of the Vendor’s knowledge, are there any claims, actions, suits, judgments, litigation or proceedings of any nature pending or threatened against the Vendor or any other person which may defeat, impair, detrimentally affect or reduce the right, title and interest of the Vendor in the Property or the interest therein to be acquired by the Purchaser under this Agreement and the Vendor is not aware of any existing ground on which any such claim, action, suit, judgment, litigation or proceeding might be commenced with any reasonable likelihood of success;
(q) none of the Purchaser or its affiliates, including without limitation, any of its respective officers, directors or employees has taken, committed to take or been alleged to have taken any action which would cause the Purchaser or any of its affiliates, to be in violation of the Corruption of Foreign Public Officials Act (Canada) (and the regulations promulgated thereunder) or any applicable laws of similar effect of any other jurisdiction, and to the knowledge of the Purchaser no such action has been taken by any of its agents, representatives or other persons acting on behalf of the Purchaser or any of its affiliates;
(r) the Vendor has the power, authority and capacity to enter into this Agreement and all other agreements and instruments to be executed by it as contemplated by this Agreement and to carry out its obligations under this Agreement and such other agreements and instruments. The execution and delivery of this Offer does not conflict with any Agreement and such other agreement binding on agreements and instruments to be executed by the Vendor and will have been, the completion of the transactions by the Completion Vendor as contemplated by this Agreement and such other agreements and instruments have been duly authorized or will, at the Closing Date, be duly authorized authorized, by all necessary corporate action on the part of the Vendor;
(c) there are no present claims or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(ds) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any an insolvent person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property save and except for the Permitted Encumbrances;
(f) except as disclosed in the environmental reports and to the best knowledge of the Vendor, the Property does not contain or have a history of containing contaminated fill, urea formaldehyde, asbestos, PCB transformer, or other hazardous, toxic or contaminated materials or substances, or underground storage tanks;
(g) subject to and without limiting the other representations and warranties herein contained, the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected by the Purchaser prior to the Subject Removal Date, reasonable wear and tear excepted;
(h) the Vendor is not a non-resident of Canada within the meaning of the Income Tax ActBankruptcy and Insolvency Act (Canada), has not made an assignment in favour of its creditors or a proposal in bankruptcy to its creditors or any class thereof and or has not had any petition for a receiving order presented in respect of it. The Vendor has not initiated proceedings with respect to a compromise or arrangement with its creditors or for its winding up, liquidation or dissolution. No receiver has been appointed in respect of the Vendor or any of its assets and no execution or distress has been levied upon any of its assets;
(it) the Vendor shall has duly obtained all authorizations of any governmental authority required for the execution, delivery and performance of this Agreement any agreement or instrument referred to or contemplated by this Agreement and the execution, delivery and performance of this Agreement and all other agreements and instruments to be executed by the Vendor and the performance of and completion of the transactions contemplated by this Agreement do not enter into and will not result in or constitute a default, breach or violation or an event that, with notice or lapse of time or both, would be a default, breach or violation of any lease negotiations of the terms, conditions or provisions of any applicable law;
(u) there is no requirement for the Vendor to give any part notice to, or to obtain any consent or approval of, any person under any contract to which the Vendor is a party to or by which it is bound or affected by in connection with the execution, delivery and performance of this Agreement or the sale of the Property nor alter any Leases without the prior written consent of the Purchaser;
(j) the Leases are the only leases, agreements to lease, offers to lease, licences or occupations or use, whether oral or written, relating to any use or occupation of the Property existing as of the date of acceptance of this Offer by the Vendorhereunder; and
(kv) the Leasesthis Agreement has been, and all other agreements and instruments to be executed as contemplated by this Agreement will be duly executed by the Vendor's knowledge, are validand constitute valid and binding obligations of the Vendor, subsisting and enforceable against the Vendor, in accordance with their terms; and there are no existing disputes between terms subject, however, to limitations on enforcement imposed by bankruptcy, insolvency, reorganization or other laws affecting the Vendor and any one or more enforcement of the tenants under rights of creditors and others and to the extent that equitable remedies such Leases as specific performance and injunctions are only available in the Vendor has not received any notice discretion of the court from any tenant of such Leases alleging any default by the Vendor or requiring the Vendor to take any action not takenwhich they are sought.
Appears in 1 contract
Sources: Mineral Property Purchase Agreement
Vendor’s Representations and Warranties. The Vendor hereby represents and warrants to the Purchaser, with the intent as representations and warranties that the Purchaser shall rely thereon in, for a period of 365 days following the Completion Date, that are true as of the date hereof Effective Date and will be true at the Completion DateDate as follows:
(a) the Vendor is the registered has now, and will have good and marketable legal and beneficial owner of title to the Purchased Property and has on the power to dispose of the same Completion Date, free and clear of all liens, claims, charges, encumbrances save for reservations in the original grant for the crown;
(b) the execution and delivery of this Offer does not conflict with any other agreement binding on the Vendor and will have been, by the Completion Date, duly authorized by all necessary corporate action on the part of the Vendor;
(c) there are no present claims or litigation pending or to the Vendor's knowledge, any claims or litigation threatened with respect to the Vendor, the Property or the occupancy or use thereof by the Vendor which could materially affect the right of the Purchaser to own, occupy or obtain revenue from the Property or materially affect the ability of the Vendor to perform its obligations hereunder;
(d) the Vendor is not aware of any expropriation or other proceedings by the City of Vancouver or any other department or government agency or engineering department or any utility company which has jurisdiction over the Property which may affect the size of the Property, the use of the Property or access to the Property;
(e) on the Completion Date the Vendor will not have any indebtedness to any person or governmental authority which by operation of law or otherwise then constitutes a lien, charge or encumbrance on the Property or which could affect the right of the Purchaser to own, occupy and obtain revenue from the Property legal notations save and except for the Permitted Encumbrances;
(fb) except as disclosed in the environmental reports Vendor is a body corporate duly incorporated and validly existing under the laws of Canada and is duly qualified to own and sell the Purchased Property and has full power, authority and capacity to enter into this Agreement and to carry out the best transactions contemplated herein;
(c) the Vendor has never been struck from the register of companies maintained by its jurisdiction of incorporation;
(d) all necessary corporate action on the part of the directors and shareholders of the Vendor has been taken to authorize and approve the execution and delivery of this Agreement, the completion of the transactions contemplated herein and the performance and observance of the Vendor’s obligations hereunder;
(e) there is no action or proceeding pending or, to the knowledge of the Vendor, threatened against the Property does not contain Vendor before any court, arbiter, arbitration panel or have a history of containing contaminated filladministrative tribunal or governmental agency which, urea formaldehydeif decided adversely to the Vendor, asbestos, PCB transformermight materially affect the Vendor’s ability to perform the Vendor’s obligations hereunder;
(f) no consent or approval of, or registration, declaration or filing with any governmental commission, board or other hazardousregulatory body is required for the execution or delivery of this Agreement by the Vendor, toxic the validity or contaminated materials or substancesenforceability of this Agreement against the Vendor, or underground storage tanksthe performance by the Vendor or any of the Vendor’s obligations hereunder;
(g) subject to and without limiting neither the other representations and warranties herein contained, Vendor entering into this Agreement nor the Property will be maintained and transferred to the Purchaser in substantially the same condition as inspected performance by the Purchaser prior Vendor of the terms hereof will result in the breach of or constitute a default under any term or provision of any instrument, document, agreement, statute, bylaw, regulation, or encumbrance to which the Subject Removal DateVendor or the Purchased Property are bound or subject or which would result in the creation of any lien, reasonable wear and tear exceptedencumbrance or other charge on the Purchased Property;
(h) the Vendor is not a “non-resident resident” of Canada within the meaning of the Income Tax ActAct (Canada);
(i) the Vendor shall not enter into has no present or future obligation to construct or provide, or to pay any lease negotiations for amount to any part of person in connection with, off-site services, utilities or similar services in connection with the Property nor alter any Leases without the prior written consent of the PurchaserLands;
(j) there is no action, suit, claim or litigation pending or, to the Leases are knowledge of the only leasesVendor, agreements threatened with respect to lease, offers to lease, licences the Lands or occupations or use, whether oral or written, relating to any the existing use or occupation occupancy thereof and, to the knowledge of the Property existing as Vendor, no state of facts exists which could constitute the date basis of acceptance of this Offer by the Vendor; andany such action, suit, claim or litigation;
(k) except as may otherwise be disclosed in the LeasesDelivery Materials, to the Vendor's knowledge, are valid, subsisting and enforceable in accordance with their terms; and there are no existing disputes between the Vendor and any one or more of the tenants under such Leases and the Vendor has not received and the Vendor is not aware of any notice notice, request, directive or order from any Governmental Authority or official, requesting, requiring or ordering the performance of any work or alteration in respect of the Lands. For the purposes of this subsection, reference to any notice, request, directive or order means any written notice, request, directive or order;
(l) the Vendor has received no written notice of and the Vendor is not aware of any proposed expropriation of the Lands or any part thereof;
(m) all local improvement, municipal, real property, school and other taxes and assessments of any kind whatsoever levied by any Governmental Authority having jurisdiction which are due or payable, are paid in full to the due date for payment thereof except for current charges for utilities consumed in the Lands and, except as disclosed to the Purchaser in writing, on the Completion Date will be paid in full to the Completion Date;
(n) the Equipment will, on the Completion Date:
(i) be free and clear of all claims, liens, charges and encumbrances; and
(ii) be assignable by the Vendor to the Purchaser, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b);
(o) there are no Other Leases, except those delivered to the Purchaser as part of the Delivery Materials, and in respect of each of the Other Leases:
(i) each is a valid and subsisting lease and no default exists thereunder, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b);
(ii) the rents and other payments reserved by each Other Lease have not been demanded, collected, accepted or paid in advance of the time for payment thereof, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b);
(iii) the Vendor is the absolute owner thereof and has not assigned, mortgaged, pledged, hypothecated or otherwise dealt with such Other Lease or rents payable thereunder and there is no existing right of defence, set off or counterclaim against the Vendor on the part of the tenant therein or any guarantor, indemnitor or covenantor in respect thereof;
(iv) all covenants on the part of such the landlord in each of the Other Leases alleging has been observed and performed, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b); and
(v) there are no deposits held or prepayments of any rents, common expenses or other payments in connection with any of the Other Leases, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b);
(p) each of the Service Contracts is in good standing and assignable to the Purchaser or can be terminated by the Vendor on not more than 30 days’ notice, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b), and there is no material default thereunder by the Vendor or requiring the other contracting parties thereto and contains the entire agreement between the parties identified therein. There are no oral or partially oral and partially written Service Contracts;
(q) to the Vendor’s knowledge, all of the documents and other materials provided pursuant to subsections 4.1(b) and 4.1(c) are true and complete copies;
(r) the Vendor is not now and has not been a party to any collective agreement or subject to any collective bargaining obligation relating to the Purchased Property or any business conducted thereon with any labour union or other association of employees;
(s) the Vendor has no employees in respect of the Vendor’s operation of the Lands for whom the Purchaser will be responsible following the completion of the sale and purchase of the Purchased Property;
(t) there are no rights of first refusal to purchase, options to purchase, rights of first refusal to lease, options to lease or similar agreements which have been granted by the Vendor in respect of any part of the Purchased Property other than any such agreements which may be contained in the copies of the Leases delivered by the Vendor to take the Purchaser and except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b); and
(u) the Vendor is not in default under any action not takenprovision of any of the Permitted Encumbrances or any agreement in any way related to the Lands and the Equipment, and has performed all of its obligations with respect to all such encumbrances, charges and agreements, except as disclosed by the Vendor to the Purchaser pursuant to subsection 4.1(b). The Vendor acknowledges and agrees that the Purchaser has entered into this Agreement in reliance on the foregoing representations and warranties and the representation and warranty in paragraph 4.1(b)(iv) with respect to the RJC Report.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lululemon Athletica Inc.)