Purchaser's Investment Representations The Purchaser hereby represents that he is acquiring the Restricted Securities purchased hereunder for his own account with the present intention of holding such securities for investment purposes and that he has no intention of selling such securities in a public distribution in violation of federal or state securities laws; provided that nothing contained herein will prevent the Purchaser and the subsequent holders of such securities from transferring such securities in compliance with the provisions of Section 2 hereof. Each certificate for Restricted Securities will be conspicuously imprinted with a legend substantially in the following form (the "Securities Act Legend"): "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON APRIL 19, 2000, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE TRANSFER OF SUCH SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN (A) THE MANAGEMENT STOCK PURCHASE AGREEMENT DATED AS OF APRIL 19, 2000, BETWEEN THE ISSUER (THE "COMPANY") AND THE ORIGINAL PURCHASER HEREOF AND (B) THE STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 10, 1999, BETWEEN THE COMPANY AND THE ORIGINAL PURCHASER HEREOF, AND THE COMPANY RESERVES THE RIGHT TO REFUSE TO TRANSFER SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF WITHOUT CHARGE." Whenever any shares of Voting Common Stock cease to be Restricted Securities and are not otherwise restricted securities, the holder thereof will be entitled to receive from the Company, without expense, upon surrender to the Company of the certificate representing such shares of Voting Common Stock, a new certificate representing such shares of Voting Common Stock of like tenor but not bearing a legend of the character set forth above.
Representation of Purchasers You will act for the several Purchasers in connection with this purchase, and any action under this Agreement taken by you will be binding upon all the Purchasers.
THE PURCHASER AND PAYMENT OF PURCHASE PRICE 8.1 Immediately after the fall of the hammer and upon being declared the successful purchaser of the Property, the Purchaser shall execute the memorandum attached hereto (`the Memorandum’).
8.2 The signed Memorandum together with these conditions of sale and the Proclamation of Sale shall in their entirety form the contract for the sale and purchase of the Property (`the Contract of Sale’).
8.3 The last bid which is the highest bid accepted by the Auctioneer and upon which the Property is sold to the Purchaser shall be the purchase price for the Property (`the Purchase Price’).
8.4 Upon successful bid of the property by the bidder, the Bidding Deposit deposited by the bidder pursuant to clause 3.1 shall be paid to the Bank immediately upon execution of the Contract of Sale (“ the Purchase Deposit)
8.5 In the event that the Purchase Price is higher than the Reserve Price, the Purchaser shall immediately deposit with the Auctioneer as stakeholder a sum equivalent to the difference between Purchase Deposit and the Bidding Deposit (`the Purchase Deposit Shortfall’) either in cash or by way of a valid bank draft or cashier’s order drawn in favour of the Bank which together will form the Purchase Deposit.
8.6 The Auctioneer shall upon receipt of the Purchase Deposit release the said sum, bank draft and/or cashier’s order to the Bank.
8.7 In the event that the Purchaser shall fail to deposit the Purchase Deposit Shortfall or shall fail to execute the Memorandum for any reason whatsoever or in the event of the bank draft and/or cashier’s order for the Bidding Deposit and/or the Purchase Deposit Shortfall is dishonored for any reason whatsoever when presented by the Bank for payment, the Purchaser shall be deemed to have committed a breach of the terms of the Auction Sale and the consequences set out in paragraph 8.8 hereto shall ensue.
8.8 In the event that the Purchaser shall commit a breach, the Bidding Deposit shall be forfeited absolutely to the Bank and the Bank may in its absolute discretion upon such terms and conditions and at such time or times the Bank deems fit put the Property up for resale. The Bank shall be further entitled to recover from the Purchaser all costs and expenses of, in connection with and resulting from such resale. The Purchaser shall be further liable to the Bank for any shortfall in the sale price obtained at the resale and the Purchase Price (`the Resale Shortfall’). A certificate duly signed by an authorized officer of the Bank as to amount of the Resale Shortfall and the costs and expenses of, in connection with resulting from such resale shall be accepted by the Purchaser as binding correct and conclusive for all purposes including for legal proceedings. The certified amount shall be paid by the Purchaser to the Bank not later than seven (7) days from the date of the demand made by the Bank.
8.9 Notwithstanding anything herein contained, the amount representing the difference between the Purchase Price and the Purchase Deposit (“Balance Purchase Price”) shall be paid by the Purchaser directly to the Bank without any set-off not later than NINETY (90) DAYS from the date of the Contract of Sale (`the Due Date’).
8.10 The Balance Purchase Price shall be paid to the Bank by way of bank draft or cashier’s order drawn in favour of the Bank or E-Payment or any mode of payment which acceptable by the Bank.
8.11 Upon the written request by the Purchaser before the expiry date, the Bank in its absolute discretion may but shall be under no obligation to extend the Due Date for such period or periods the Bank deems fit (`the Extended Due Date’).
8.12 The Purchaser shall have prior to twenty one (21) days of the Due Date, the Purchaser shall issue a written request to the Assignee/Bank applying for an extension of time and the Bank may in it’s absolute discretion (i) agree to grant the extension of time unconditionally, or (ii) refuse the request, in which case the 10% of the successful bid shall be forfeited, or (iii) agree to grant an extension of time subject to conditions (including but not limited to imposition of late payment interest/charges/compensation at such rate/amount as the Bank shall determine) without assigning any reasons whatsoever and such decision shall be binding on the Purchaser. The interest on late payment if imposed by the Bank may be in the form of advance payment of interest for the extension period or otherwise is final and not refundable.
8.13 In the event that the Purchaser for any reason whatsoever (save and except where it is due to the default of the Bank) fails to pay the Balance Purchase Price by the Due Date or the Extended Due Date, as the case may be, the Purchaser shall be deemed to be in breach of the Contract of Sale, and all monies paid to the Bank upon the execution of the Contract of Sale including the Purchase Deposit shall be forfeited absolutely by the Bank and the consequences as set out in paragraph 8.8 shall ensue.
Purchaser Closing Deliveries No later than one (1) Business Day prior to the Closing Date (except for the balance of the Purchase Price which is to be delivered at the time specified in Section 2.2.4), Purchaser shall deliver to the Escrow Agent (for disbursement to the applicable Seller upon the Closing) the following items with respect to each Property being conveyed at such Closing:
(a) A title affidavit (or at Purchaser’s option an indemnity) pertaining to Purchaser’s activity on the applicable Property prior to Closing, in the customary form reasonably acceptable to Purchaser, to enable Title Insurer to delete the standard exceptions to the title insurance policy set forth in this Agreement (other than matters constituting any Permitted Exceptions and matters which are to be completed or performed post-Closing) to be issued pursuant to the Title Commitment; provided that such affidavit does not subject Purchaser to any greater liability, or impose any additional obligations, other than as set forth in this Agreement;
(b) Any declaration or other statement which may be required to be submitted to the local assessor with respect to the terms of the sale of such Property;
(c) A closing statement executed by Purchaser;
(d) A counterpart of the General Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(e) A counterpart of the Leases Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(f) A counterpart of the Tenant Notices, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable, to be delivered to the Tenants by Purchaser promptly following Closing;
(g) Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Purchaser’s or Purchaser Designated Entities’, as applicable, authority to consummate this transaction; and
(h) If applicable and only with respect to the Runaway Bay I, the Xxxxxx’x Pointe, and Xxxx Bridge Crossing Properties, the Loan Documents to be executed by Purchaser or Purchaser’s Designated Entity, as applicable.
Closing Deliveries of Purchaser At the Closing, Purchaser shall deliver to Seller:
Purchaser Representations In connection with the issuance and acquisition of Shares under this Agreement, the Purchaser hereby represents and warrants to the Company as follows:
(i) The Purchaser is acquiring and will hold the Purchased Shares for investment for his or her account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act.
(ii) The Purchaser understands that the Purchased Shares have not been registered under the Securities Act by reason of a specific exemption therefrom and that the Purchased Shares must be held indefinitely, unless they are subsequently registered under the Securities Act or the Purchaser obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required. The Purchaser further acknowledges and understands that the Company is under no obligation to register the Purchased Shares.
(iii) The Purchaser is aware of the adoption of Rule 144 by the Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions, including (without limitation) the availability of certain current public information about the issuer, the resale occurring only after the holding period required by Rule 144 has been satisfied, the sale occurring through an unsolicited “broker’s transaction,” and the amount of securities being sold during any three-month period not exceeding specified limitations. The Purchaser acknowledges and understands that the conditions for resale set form in Rule 144 have not been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.
(iv) The Purchaser will not sell, transfer or otherwise dispose of the Purchased Shares in violation of the Securities Act, the Securities Exchange Act of 1934, or the rules promulgated thereunder, including Rule 144 under the Securities Act. The Purchaser agrees that he or she will not dispose of the Purchased Shares unless and until he or she has complied with all requirements of this Agreement applicable to the disposition of Purchased Shares and he or she has provided the Company with written assurances, in substance and form satisfactory to the Company, that (A) the proposed disposition does not require registration of the Purchased Shares under the Securities Act or all appropriate action necessary for compliance with the registration requirements of the Securities Act or with any exemption from registration available under the Securities Act (including Rule 144) has been taken and (B) the proposed disposition will not result in the contravention of any transfer restrictions applicable to the Purchased Shares under state securities law.
(v) The Purchaser has been furnished with, and has had access to, such information as he or she considers necessary or appropriate for deciding whether to invest in the Purchased Shares, and the Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of the Purchased Shares.
(vi) The Purchaser is aware that his or her investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Purchaser is able, without impairing his or her financial condition, to hold the Purchased Shares for an indefinite period and to suffer a complete loss of his or her investment in the Purchased Shares.
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB Purchaser and Merger Sub hereby represent and warrant to the Company as follows:
Purchaser’s Closing Obligations On the Closing Date, Purchaser, at its sole cost and expense, will deliver to Seller the following items:
(a) The Purchase Price, after all adjustments are made as herein provided, by Federal Reserve wire transfer of immediately available funds, in accordance with the timing and other requirements of Section 3.2;
(b) A counterpart original of each Assignment of Leases, duly executed by Purchaser;
(c) A counterpart original of each Assignment, duly executed by Purchaser;
(d) Evidence reasonably satisfactory to Seller that the person executing the Assignment of Leases, the Assignment, and the Tenant Notice Letters on behalf of Purchaser has full right, power and authority to do so;
(e) Form of written notice executed by Purchaser and to be addressed and delivered to the Tenants by Purchaser in accordance with Section 10.6 herein, (i) acknowledging the sale of the Property to Purchaser, (ii) acknowledging that Purchaser has received and that Purchaser is responsible for the Security Deposit (specifying the exact amount of the Security Deposit) and (iii) indicating that rent should thereafter be paid to Purchaser and giving instructions therefor (the “Tenant Notice Letters”);
(f) A counterpart original of the Closing Statement, duly executed by Purchaser;
(g) A certificate, dated as of the Closing Date, stating that the representations and warranties of Purchaser contained in Section 8.2 are true and correct in all material respects as of the Closing Date;
(h) A counterpart original of the Operating Agreement (as defined in Section 10.3(k) below), duly executed by Purchaser; and
(i) Such other documents as, may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement.
Additional Investment Representations Each Management Member represents and warrants that:
(a) the Management Member's financial situation is such that such Management Member can afford to bear the economic risk of holding the Units for an indefinite period of time, has adequate means for providing for the Management Member's current needs and personal contingencies, and can afford to suffer a complete loss of the Management Member's investment in the Units;
(b) the Management Member's knowledge and experience in financial and business matters are such that the Management Member is capable of evaluating the merits and risks of the investment in the Units;
(c) the Management Member understands that the Units are a speculative investment which involves a high degree of risk of loss of Management Member's investment therein, there are substantial restrictions on the transferability of the Units and, on the date on which such Management Member acquires such Units and for an indefinite period following such date, there will be no public market for the Units and, accordingly, it may not be possible for the Management Member to liquidate the Management Member's investment including in case of emergency, if at all;
(d) the terms of this Agreement provide that if the Management Member ceases to provide services to the Company and its Affiliates, the Company and its Affiliates have the right to repurchase the Units at a price which may be less than the Fair Market Value thereof;
(e) the Management Member understands and has taken cognizance of all the risk factors related to the purchase of the Units and, other than as set forth in this Agreement, no representations or warranties have been made to the Management Member or Management Member's representatives concerning the Units, the Company, the Subsidiaries or their respective prospects or other matters;
(f) the Management Member has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company and its representatives concerning the Company and its subsidiaries, the acquisition of Nalco Company and certain Subsidiaries of Nalco International S.A.S. by subsidiaries of the Company, the LLC Agreement, the Company's organizational documents and the terms and conditions of the purchase of the Units and to obtain any additional information which the Management Member deems necessary; and
(g) all information which the Management Member has provided to the Company and the Company's representatives concerning the Management Member and the Management Member's financial position is complete and correct as of the date of this Agreement.
Representations of the Purchasers Each Purchaser represents as follows:
