Covenants of Purchaser. (a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing. (b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3. (c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed. (d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 3 contracts
Samples: Purchase Agreement (Inland Monthly Income Fund Iii Inc), Agreement to Purchase (Carlyle Income Plus LTD), Agreement to Purchase (Carlyle Income Plus Lp Ii)
Covenants of Purchaser. Purchaser hereby covenants with Seller as follows:
(a1) If Purchaser, in connection with its investigation of the Property during the Inspection Period, inspects the Property for the presence of Hazardous Substances (as defined in Section 5.1(i) hereof), and if Purchaser terminates this Agreement during the Inspection Period, then Purchaser shall notify furnish to Seller promptly if Purchaser becomes aware copies of any transactions or occurrence prior to the Closing Date which would make reports received by Purchaser in connection with any of the such inspection. Purchaser hereby assumes full responsibility for such inspections and, except for claims based on representations or warranties of Seller contained in this Agreement untrue in Section 5.1(i), irrevocably waives any material respect. Purchaser's failure to so notify claim against Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth presence of Hazardous Substances on the Property. If Purchaser terminates this Agreement during the Inspection Period, Purchaser shall also furnish to Seller copies of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known other reports received by Purchaser relating to be untrue at any other inspections of the Property conducted on Purchaser's behalf, if any (including, specifically, without limitation, any reports analyzing compliance of the Property with the provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ss.12101, et seq., if applicable), other than those reports which are confidential or prior to Closing, proprietary in nature. The provisions of this Section shall not survive ClosingClosing or any early termination of this Agreement.
(b2) Purchaser acknowledges and agrees that shall, at least twenty-four (24) hours prior to any entry onto the sale Property, in connection with its investigation of the Property is made on an "AS ISduring the Inspection Period, WHERE-IS WITH ALL FAULTS" basis andprovide Seller with sufficient evidence to show that Purchaser and its agents or representatives who are to enter upon the Property are adequately covered by policies of insurance issued by a carrier reasonably acceptable to Seller insuring Purchaser, except as specifically set forth in Section 7.2Seller and Seller's advisors and property manager against any and all liability arising out of Purchaser's or its agents' or representatives' entry (including, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited tolimitation, any representation loss or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of damage to the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to with coverage in the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations amount of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(bnot less than $5,000,000 per occurrence). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will cause any such person accessing the Property to be covered by not attempt to contact any less than $5,000,000 liability insurance insuring all activity and conduct of the tenants such person while exercising such right of access. Purchaser represents and warrants that it carries not less than $5,000,000 general liability insurance with a contractual liability endorsement which insures its indemnity obligations under this Agreement, which names Seller and Seller's advisors and property manager of the Property (whether by telephone, correspondence, as additional insureds thereunder. The provisions of this Section shall survive Closing or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any early termination of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicablethis Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Mack Cali Realty L P), Purchase and Sale Agreement (Mack Cali Realty Corp)
Covenants of Purchaser. Purchaser covenants and agrees to perform as follows:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions will not directly or occurrence prior to indirectly modify, change, or otherwise use the Closing Date which would make any Company’s products, trademarks, trade names or other assets without the express written consent of the representations or warranties of Seller contained in this Agreement untrue in any material respectCompany. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from further covenants that during the untruth of any such representations or warranties of Seller known to Purchaser prior to period for the date hereof until Closing, it being agreed by will make payments for all Company operations incurred in the parties hereto that such representations ordinary course of business and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closingconsistent with reasonable and customary business practices.
(b) Purchaser acknowledges will not use, disclose, transfer or make available any confidential information of the Company except to its agents, attorneys, advisors and investors, as required and necessary to consummate this Agreement and the actions contemplated hereby. If the Agreement is not consummated for any reason, Purchaser agrees and will return all Proprietary Assets in their original and modified forms to Company, and agrees that to safeguard and not disclose to anyone outside the sale of Company any proprietary or confidential information acquired during due diligence and up until the Property Close. If the Agreement is made on an "AS ISnot consummated for any reason, WHEREPurchaser will provide executed Non-IS WITH ALL FAULTS" basis andDisclosure Agreements from any and all employees, except agents, attorneys, advisors and investors who have had access to the Proprietary Assets in the form as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.Exhibit E.
(c) Purchaser acknowledges and agrees will not represent to any person, including the public, third parties, or governmental agencies, that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed it has any authority to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by act on behalf of the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired Company prior to execution hereof. Seller will the Closing and shall not voluntarily terminate take any action or make any decision on behalf of the Leases Company prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayedthe Closing.
(d) Purchaser has been granted the right to use the term "The Children's Internet”, a registered trademark licensed to the Company under an agreement with Two Dog, for the sole purposes of establishing an entity to consummate this Agreement. If this Agreement is not consummated for any reason, Purchaser will immediately change its name so that the name does not include the Company’s trademark. Purchaser further agrees that it Purchaser will not attempt to contact have acquired and will not claim any right or interest in the trademark or trade name resulting from Purchaser’s use of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicabletrademark.
Appears in 2 contracts
Samples: Definitive Stock Purchase Agreement (Children's Internet Holding Company, LLC), Stock Purchase Agreement (Childrens Internet Inc)
Covenants of Purchaser. Purchaser agrees with each Seller as follows:
(a) Until the Closing, Purchaser shall notify Seller promptly if comply with the Confidentiality Agreements (as such term is defined in the Agreement and Plan of Merger referred to in clause (e) of Section 6.1, except as otherwise permitted in this Section 4.2(a), which Confidentiality Agreements shall be deemed by Sellers and Purchaser becomes aware of any to cover the transactions or occurrence prior to contemplated by this Agreement. After the Closing Date which would make any of the representations or warranties of Seller nothing contained in this Agreement untrue or the Confidentiality Agreements shall restrict the right of Purchaser, as between Purchaser and any Seller, to use or disclose information regarding the Interests. Notwithstanding anything contained in this Section 4.2(a) to the contrary and insofar as it relates to the Interests, Purchaser may disclose any material respectof the information subject to the first sentence of this Section 4.2(a) or covered by the Confidentiality Agreements to the extent (i) necessary to enforce, or seek redress for breach of, this Agreement, (ii) required by applicable law or the rules of a national securities exchange, (iii) necessary for financing, reserve engineering or accounting purposes, (iv) to comply with any law or legal process, or (v) otherwise previously made public (without breach of the preceding sentence of this Section 4.2(a) or of the Confidentiality Agreements). Purchaser's failure In addition, Seller acknowledges and agrees that Purchaser may issue one or more press releases and may make other public statements with respect to so notify Seller this Agreement or the transactions contemplated by this Agreement. If a proposed press release or other public statement will contain information not previously disclosed, Purchaser shall constitute a waiver provide HHOC, pursuant to the Agreement and Plan of Merger referred to in clause (e) of Section 6.1, with any and all proposed forms of press release or other public statement and consult with HHOC before issuing any press release or otherwise making any public statement with respect to this Agreement or the transactions contemplated by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of this Agreement and shall not issue any such representations press release or warranties of Seller known to Purchaser make any such public statement prior to Closingproviding the proposed form of such press release or public statements and having such consultation; provided, it being agreed however, that Purchaser may, without providing the proposed form of such press release or public statement or consulting with HHOC, issue such a press release or make such a public statement if required by applicable law or the parties hereto that such representations rules of a national securities exchange if Purchaser has used reasonable efforts to provide HHOC with the proposed form of press release or public statement and warranties known by Purchaser consult with HHOC but has been unable to be untrue at or prior to Closing, shall not survive Closingdo so in a timely manner.
(b) Purchaser acknowledges shall remain qualified under applicable laws and agrees that regulations, including the sale rules and regulations of the Property is made on an "AS ISMMS, WHERE-IS WITH ALL FAULTS" basis andto own and operate federal oil and gas leases in the Outer Continental Shelf, except Gulf of Mexico and shall be, as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the PropertyClosing, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enactedgood standing with, and which relate to authorized and qualified by, all governmental agencies with jurisdiction or cognizance over operations on the Property or environmental conditions onOuter Continental Shelf, under, or near the Property and are not the direct result Gulf of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Mexico.
(c) Purchaser acknowledges shall take or cause to be taken all reasonable actions within its control as may be necessary or advisable to consummate and agrees that except as provided in Section 4.3(d), nothing in make effective the purchase of the Interests and the transactions contemplated by this Agreement shall be deemed and to preclude or prohibit Seller from operatingassure that, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which Closing Date, it will not be unreasonably withheld under any material corporate, legal or unduly delayedcontractual restriction that would prohibit or delay the timely consummation of such transactions.
(d) Purchaser agrees that it will not attempt shall take or cause to contact any be taken all reasonable actions to cause all the representations and warranties of Purchaser contained in this Agreement to be true and correct on and as of the tenants Closing Date, other than such as are made as of the Property a specific date.
(whether by telephone, correspondence, e) Purchaser shall notify each Seller promptly (i) upon learning of any change in fact or circumstance that causes any representation or warranty of Purchaser contained in personthis Agreement to no longer be accurate and complete or (ii) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice fails to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication perform or comply with any of the tenants covenant or agreement contained in this Agreement or it is reasonably anticipated that Purchaser will be unable to be present at perform or comply with any personal meeting with the tenants, as applicablecovenant or agreement contained in this Agreement.
Appears in 1 contract
Covenants of Purchaser. (a) Each of BSC and Purchaser shall notify Seller promptly covenants and agrees with Ivaco that, so long as Ivaco or any of its Affiliates beneficially own in the aggregate at least 10% of the outstanding shares of Laclede Common Stock (with all Laclede Preferred Stock being deemed converted into Laclede Common Stock), (i) it will not acquire any shares of capital stock of Laclede (x) directly from Laclede or any Affiliate thereof (other than BSC, Purchaser or any of their subsidiaries) unless Ivaco is provided the right to purchase its pro rata percentage of such capital stock (based upon the Laclede Common Stock beneficially owned by Purchaser and Ivaco and their Affiliates) upon the same terms and conditions as applies to BSC or Purchaser's acquisition of such capital stock or (y) from any third party (including purchases on the securities markets on which the Laclede Common Stock is then traded) unless, at the time of such acquisition, Holdings I (or, if Holdings I no longer owns any Ivaco Laclede Shares, Ivaco or any Affiliate thereof then owning any Ivaco Laclede Shares) is given the right, exercisable within three (3) business days after written notice of such acquisition by BSC or Purchaser becomes aware is received, to sell an equal number of any transactions shares of Laclede Common Stock to BSC or occurrence prior Purchaser at the same purchase price paid to such third party (or, if such purchase price was not paid in cash, the cash equivalent of such purchase price); it being understood that to the Closing Date which extent neither Holdings I, Ivaco nor any Affiliate beneficially owns any Laclede Common Stock, such right shall apply to any Laclede Preferred Stock beneficially owned by them as if such shares of Laclede Preferred Stock were converted into Laclede Common Stock and (ii) it will not cause any directors elected to the Board of Directors of Laclede at its designation to take any action (or omit to take any action), and it will not exercise the Proxy or the Voting Agreement to take any action (or omit to take any action), that would make discriminate against the interests of Ivaco as a stockholder of Laclede (it being understood that this provision does not apply to any action (or omission to take any action) that would have the same effect on all stockholders generally, including BSC and Purchaser); provided, however, the provisions of (i) above shall not be applicable on and after September 23, 2002 and the provisions of (ii) above shall not be applicable on and after the expiration of the representations or warranties Proxy and the Voting Agreement. Each of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto agree that any violation of the rights provided in this Section cannot be compensated for by damages and Ivaco shall share the right to obtain specific performance of such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closingrights in any court of competent jurisdiction in the event of such violation thereof.
(b) BSC and Purchaser acknowledges covenants and agrees that with Ivaco to pay to Ivaco any dividends on the sale of the Property is made on an "AS ISLaclede Preferred Stock which BSC, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers Purchaser or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims their Affiliates may receive on or affecting or pertaining to after the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and date hereof which relate to the Property or environmental conditions onperiod from the date of original issuance by Laclede of the Laclede Preferred Stock (i.e., underJuly 30, or near 1996) until September 26, 1997 (the Property and are not the direct result of a default "Period"). For purposes of this Agreement by SellerSection 6(b), in which latter event Purchaser's remedies all dividends paid on the Laclede Preferred Stock shall be limited for any such default prior first applied to Closing unpaid dividends with respect to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Period.
(ca) Indemnification by Ivaco and Holdings I. Ivaco will indemnify and hold harmless BSC, Purchaser acknowledges and agrees that except as provided in Section 4.3(d)their respective officers, nothing directors and Affiliates from and against any and all claims, liabilities, losses, damages, costs and expenses, including reasonable counsel fees (collectively "Losses") arising out of or relating to any breach by Holdings I or Ivaco of any representation, warranty or covenant made by Holdings I or Ivaco in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayedAgreement.
(db) Purchaser agrees that it will not attempt to contact any of Indemnification by the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired Purchaser. BSC and Purchaser has not given Seller a Notice will indemnify and hold harmless Holdings I, Ivaco and their respective officers, directors, managers and Affiliates from and against any Loss arising out of or related to Cancel. Thereafterany breach by BSC or Purchaser of any representation, warranty or covenant made by BSC or Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicablein this Agreement.
Appears in 1 contract
Covenants of Purchaser. The Purchaser covenants and agrees that at all times on and after the applicable Purchase Date for a Purchased Loan:
(a) The Purchaser shall, and shall notify cause its successors and assigns to, maintain the Borrower Benefits for each Borrower of a Purchased Loan as may be receiving Borrower Benefits as of such Purchase Date or as may thereafter qualify to receive such Borrower Benefits in accordance with the terms and conditions established by the Seller promptly under the terms of the applicable Loan Documents prior to such Purchase Date. The Purchaser acknowledges that certain other policies, practices and procedures or programs adopted by the Seller in connection with the origination, servicing and administration of the Loans and identified as Seller’s Policies and Servicing Practices may give rise to rights of, or certain benefits to, the Borrowers in addition to rights and benefits expressly provided for in the Loan Documents. The Purchaser agrees with respect to (x) any Purchased Loan which as of such Purchase Date is enjoying any right or benefit pursuant to any of the Seller’s Policies and Servicing Practices and (y) any other Purchased Loan, if Purchaser becomes aware of the related Borrower requests any transactions such right or occurrence benefit and submits the required documentation therefor to the Servicer at any time prior to the Closing date that is 120 days after such Purchase Date which would make any and such Purchased Loan and/or such Borrower is eligible for such right or benefit as of the representations or warranties time of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closingsubmission, it being agreed by shall provide each right and benefit under the parties hereto that Seller’s Policies and Servicing Practices for so long as such representations and warranties known by Purchaser to be untrue at Purchased Loan and/or the related Borrower remains eligible for such right or prior to Closing, shall not survive Closingbenefit including any extensions or renewals thereof.
(b) The Purchaser acknowledges shall comply with all Applicable Law and agrees that Regulation in connection with the sale deconversion, ownership and collection of the Property is made on an "AS ISPurchased Loans. The Purchaser will not violate, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but and will not limited topermit the violation of, any representation laws relating to unfair credit collection practices in connection with the Purchased Loans in a manner that would create or warranty made by expose the Brokers Seller to any claim, demand or assertion that, after the applicable Purchase Date, the Seller, its Affiliates or any representation of their respective employees, agents, attorneys, representatives or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or servicers was in any other document executed and delivered by Seller to Purchaser at Closing as described way involved in Section 4.5(b). Purchaser hereby waives or had in any and all claims which may currently exist or which may arise way authorized any unlawful collection practices in connection with the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3related Purchased Loans.
(c) The Purchaser acknowledges will not use or refer to the Seller’s name, trademark, logo or other identifying marks (or the name of any Affiliate of the Seller) (collectively, “Marks”) for any purpose relating to any Purchased Loan, except that the Purchaser may use the Seller’s Marks in connection with (i) any initial welcome letter that the Purchaser elects to send to Borrowers on Purchased Loans (solely for the purpose of disclosing that the Seller has assigned the applicable Purchased Loan to the Purchaser); provided that the Purchaser shall not send any such welcome letter to any Borrower unless the Seller has approved the form and agrees substance of such letter (such approval not to be unreasonably withheld, conditioned or delayed), (ii) matters relating to Debtor Relief Laws or for the purpose of identifying a Purchased Loan to a Borrower in connection with the collection thereof or identifying to a potential purchaser or lender the chain of title of a Purchased Loan, (iii) communications with Borrowers with respect to Borrower Benefits and similar historical information concerning the Purchased Loans that except occurred or is directly related to the period prior to the applicable Purchase Date, (iv) matters contemplated with respect to the Power of Attorney or (v) the notifications required by Section 5.02(g). Any such use by the Purchaser of the Seller’s Marks shall not in any way disparage the Seller, be injurious to the reputation of the Seller, or cause the Seller to lose goodwill. Except as provided in Section 4.3(d)the Power of Attorney, nothing in this Agreement shall be deemed neither the Purchaser nor anyone acting for the Purchaser will act or purport to preclude act for or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any name of the Leases prior Seller (or any Affiliate of the Seller) with respect to their expiration date without Purchaser's written approval which will not be unreasonably withheld collection of any Purchased Loan or unduly delayedany other matter.
(d) The Purchaser agrees that it will shall not retroactively charge or otherwise attempt to contact collect any late fees with respect to any period prior to the first anniversary of the tenants applicable Purchase Date. For the avoidance of doubt, the Purchaser may, subject to Applicable Law and Regulation, charge and collect late fees with respect to any period subsequent to the first anniversary of the Property (whether by telephoneapplicable Purchase Date, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it the Purchaser shall have first provided all Borrowers of the Purchased Loans notice of the potential for the incurrence of such late fees at least 90 days (or such longer period as may be required by Applicable Law and Regulation or indicated under guidance provided by regulators) prior to charging such fees.
(e) The Purchaser will not portray or hold itself out as an agent, partner or joint venture of the Seller (or any Affiliate of the Seller) in connection with any Purchased Loans.
(f) The Purchaser shall not institute or continue any legal, collection or enforcement proceeding in the name of the Seller or any of its predecessors or Affiliates or mislead, whether through misrepresentation or nondisclosure or otherwise, a Borrower or any other Person as to the identity of the owner of the Purchased Loans.
(g) Upon the written request of the Seller describing in reasonable detail the purpose of such request, the Purchaser shall provide within a reasonable time, at the Seller’s sole cost and expense and subject to restrictions under Applicable Law and Regulation, copies of the books and records relating to the Purchased Loans solely to the extent relating to the period prior to the applicable Purchase Date and to the extent necessary for (i) the preparation of financial statements, regulatory filings or tax returns of the Seller or its Affiliates in respect of periods ending on or prior to the applicable Purchase Date, (ii) responding to matters referred to in Section 5.03, (iii) evaluating and responding to any actual or threatened litigation or other legal or administrative proceedings or inquiries involving the Purchased Loans, (iv) satisfying any audit or regulatory review requirement or (v) assessing or determining the amount of or the basis for any indemnification payment or attempting to cure the related Seller Breach. Notwithstanding anything herein to the contrary, the Purchaser shall not be required to disclose information (a) that is subject to attorney-client or other legal privilege, (b) that is deemed by the Purchaser in its reasonable judgment to be competitively sensitive or (c) the disclosure of which would conflict with any confidentiality obligations by which the Purchaser is bound.
(h) Within thirty (30) days after the applicable Purchase Date, the Purchaser shall notify Borrowers of the assignment and transfer to the Purchaser of the Seller’s interest in the Purchased Loans, and the Purchaser shall direct each Borrower to make all payments thereon directly to the Purchaser, or as the Purchaser may otherwise designate. The Seller hereby grants to the Purchaser the authority (i) to make any such notifications on the Seller’s behalf or (ii) to direct the Servicer, Northland or a subservicer or subcontractor to make such notification; provided, that the form and content of any such notification shall be as mutually agreed upon by the Seller and give the Purchaser.
(i) The Purchaser understands that the Seller will report the opportunity Purchased Loans to review any written communication the appropriate credit reporting agencies as having been sold to the Purchaser. Except as required by Applicable Law and Regulation, after the applicable Purchase Date, all Borrower inquiries with any respect to credit reporting shall be the responsibility of the tenants or to be present at any personal meeting with the tenants, as applicablePurchaser.
Appears in 1 contract
Covenants of Purchaser. Purchaser hereby covenants to Seller that, from the date hereof until the Closing, it will do or cause the following to occur:
(a) Certain Applications: As soon as practicable, but in no event later than thirty (30) days after the date hereof, Purchaser shall notify prepare and submit for filing, at no expense to Seller, any and all applications, filings, and registrations with, and notification to, all Federal and state authorities required on the part of Purchaser for the Acquisition to be consummated at the Closing as contemplated in Section 6.1 herein. Thereafter, Purchaser shall use its best efforts to pursue all such applications, filings, registrations, and notifications diligently and in good faith, and shall promptly file such supplements, amendments, and additional information in connection therewith as may be reasonably necessary for the Acquisition to be consummated at such Closing. Purchaser shall deliver to Seller promptly if a copy of each and all of such applications, filings, registrations and notifications (except for any confidential portions thereof), and any supplement, amendment or item of additional information, including all correspondence, in connection therewith (except for any confidential portions thereof), not later than the date it is filed with such Federal and state authorities, and Purchaser becomes aware shall deliver to Seller a copy of each material notice, order, opinion and other item of correspondence received by Purchaser from such Federal and state authorities (except for any transactions or occurrence prior confidential portions thereof) within three (3) days of its receipt by Purchaser and shall advise Seller, at Seller's reasonable request, of developments and progress with respect to such matters. Purchaser understands and acknowledges that time is of the essence with respect to the Closing Date which would make any of the representations or warranties of Seller contained obligations set forth in this Agreement untrue in any material respect. Purchaser's Section 2.2(a), and that the failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of comply with any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller obligations pursuant to Purchaser at Closing as described in this Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of 2.2(a) shall be deemed a default material breach of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Branch Purchase and Assumption Agreement (Ameriana Bancorp)
Covenants of Purchaser. (a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an in "AS IS, WHERE-IS IS, WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.-17-
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval approval, which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact conversation regarding Rivertree Court with any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Tenants without notifying Seller and give Seller the opportunity to review any obtaining Seller's prior written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicableagreement.
Appears in 1 contract
Covenants of Purchaser. Purchaser does hereby covenant and agree as follows:
a. Pre-Closing. Between the date hereof and the Closing Date, Purchaser will not take any action inconsistent with its obligations hereunder and will:
(i) Purchaser will, at Purchaser's sole cost and expense, cause a surveyor to prepare and deliver to Purchaser (with a copy to Seller) a survey of the Real Property meeting the requirement set forth below (the "Survey"). The Survey shall show thereon:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware the location of any transactions all boundaries, existing fences, all easements, pipelines, rights-of way, and roads which are of record or occurrence prior to visible on the Closing Date which would make ground, (b) whether any of the representations Real Property lies within a 100 year flood plain or warranties any special flood hazard area as designated by any governmental agency, (c) the number of Seller acres and net square footage contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser within the boundaries of the Real Property, (d) the location and dimensions of any liability protrusions from and encroachments on the Real Property; (e) the location of Seller all public roads or highways adjacent to Purchaser or its designee arising from the untruth of any Real Property and (f) such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed other matters as shall be required by the parties hereto Title Company for the issuance of the Title Policy with no exception for matters as to survey. The Survey shall be certified to the Purchaser and the Title Company. The surveyor shall include in its certification its Registration Number, address, telephone number, the job number and that such representations the Survey was made on the ground as per the field notes shown thereon and warranties known that, except as shown thereon, there are no visible easements, rights-of way, party walls, conflicts, or visible encroachments by Purchaser an improvements onto an easement or neighboring property or by any improvements on adjoining property onto the Real Property and that the Real Property has direct access to be untrue at or prior to Closing, shall not survive Closingall adjacent public streets.
(bii) Purchaser acknowledges and agrees that file with the sale appropriate governing authority an application for the subdivision of the Real Property into a separate legal lot, which application shall be accompanied by all necessary back-up information which said application shall require in order to commence the process for the approval of said subdivision and Purchaser shall thereafter diligently pursue said subdivision in order that approval may be obtained by the Closing Date. In connection with such subdivision, Purchaser shall cause the Survey to be updated to reflect the precise dimensions of the Real Property as created by said subdivision and, If the Real Property is made on an "AS ISto be conveyed by a metes and bounds description, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by Purchaser shall cause the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition surveyor to prepare and deliver to Seller and the Title Company a certified metes and bounds description of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing Real Property as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to shown on the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.final Survey;
Appears in 1 contract
Covenants of Purchaser. (a) Purchaser acknowledges that all information in respect of the Properties furnished to Purchaser is and has been so furnished on the condition that Purchaser maintain the confidentiality thereof. Accordingly, Purchaser shall, and shall notify inform its partners, directors, officers, employees, agents, contractors, and representatives to, hold in strict confidence, and not disclose to any other person or entity without the prior written consent of Seller promptly if Purchaser becomes aware of any transactions or occurrence prior to until the Closing Date which would make shall have been consummated, any of the representations information in respect of either of the Properties delivered to Purchaser by Seller or warranties any of Seller contained in its agents, representatives, directors, officers, or employees (the "Confidential Information"). If the Closing does not occur and this Agreement untrue is terminated, Purchaser shall use commercially reasonable efforts to promptly return, or cause to be returned, to Seller all copies of such Confidential Information without retaining, or knowingly permitting retention of, any copy thereof. Notwithstanding anything to the contrary hereinabove set forth, Purchaser may disclose such Confidential Information (i) on a need-to-know basis to its employees, its title insurer, and members of professional firms serving it in connection with this transaction, including without limitation its attorneys, architects, environmental consultants and engineers, and its prospective assignees and lenders; (ii) as any material respect. Purchaser's failure governmental agency or authority may require in order to so notify Seller shall constitute a waiver comply with applicable laws or regulations; and (iii) if required by Purchaser an order of any liability court of Seller competent jurisdiction, and this provision shall survive Closing. Confidential Information does not include any information which (1) at the time of disclosure is generally available to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller and known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations public; (2) was available on a non-confidential basis; and warranties known (3) has been independently developed by Purchaser. Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and also agrees that following Closing it shall provide Seller, upon reasonable advance notice and during normal business hours, access to those documents related to either the sale of Oakton Property or the Towngate Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered provided by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate pursuant to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by for purposes of inspection and copying at Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) sole cost and for any default discovered after Closing to the provisions of Section 10.3expense.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Covenants of Purchaser. (ai) No earlier than twenty (20) calendar days prior to the Effective Date and subject to Seller's prior written approval pursuant to Section 5.07 hereof, Purchaser shall distribute at its sole expense in Purchaser's usual fashion to customers of Seller whose Deposits are expected to be assumed by Purchaser having checking, money market deposit or negotiable order of withdrawal ("NOW") Deposits accounts at the Cambridge Office, an initial supply of new basic checks, deposit tickets or other similar instruments and ATM and debit cards, which shall be appropriately encoded with Purchaser's routing numbers and with accurate account numbers for use by such customers following the Effective Date. Purchaser shall notify such customers that:
(A) following the Effective Date, customers of the Cambridge Office are to use the new checks issued by Purchaser and are not to use any remaining checks, deposit tickets or other items or any ATM or debit cards previously issued by Seller promptly if Purchaser becomes aware which may be in the possession of such customers and
(B) upon the expiration of a period of ninety (90) calendar days from and after the Effective Date (the "Post-Transfer Processing Period"), any transactions or occurrence Items which are drawn on Seller shall not thereafter be honored by Seller. Such notice shall also be given by posting signs in the Cambridge Office beginning thirty (30) calendar days prior to the Closing Date which would make any Effective Date. The form of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller such notice shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining subject to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations prior written approval of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed. In the event that Seller shall so request at any time(s) during the Post-Transfer Processing Period, Purchaser shall use all reasonable efforts to notify particular customers to stop using Seller's checks and to stop attempting to make deposits into the Transferred Accounts as such accounts existed at Seller. Purchaser will use commercially reasonable efforts to be in a position to process the Deposits on its system as soon as practicable following the Effective Time and no later than the opening of business on the next business day following the Effective Time. Purchaser and Seller will mutually determine any documents, instruments, and/or notices to be given to other holders of Deposits to be assumed by Purchaser.
(dii) Purchaser agrees that it will not attempt to contact any of During the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. ThereafterPost-Transfer Processing Period, Purchaser may contact any and Seller shall make arrangements to provide for the daily settlement of the tenants so long as it shall first notify checks, drafts, payment orders, withdrawal orders, returns and other Items presented to Seller and give paid by Seller during the opportunity Post-Transfer Processing Period by wire transfer of immediately available funds by Purchaser. To facilitate such settlement, each Party shall identify an account to review which funds may be wired by the other Party to reflect adjustment items arising during the Post-Transfer Processing Period. Purchaser and Seller shall identify to each other and make available on a daily basis individuals to serve as liaisons between Purchaser and Seller in order to resolve any written communication with any of settlement or other reconciliation issues relating to the tenants or to be present at any personal meeting with the tenants, as applicableTransferred Accounts.
Appears in 1 contract
Samples: Branch Purchase and Assumption Agreement (First Ipswich Bancorp /Ma)
Covenants of Purchaser. Purchaser covenants and agrees that from the date hereof until the Closing Date (and thereafter with respect to any covenant or agreement extending beyond the Closing Date), except as otherwise expressly permitted or required by this Agreement or the Collaboration Agreement or except as otherwise consented to by Purchaser in its writing:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any will use all reasonable good faith efforts to take all actions and to do all things necessary, proper or advisable to consummate the transactions or occurrence prior to contemplated hereby by the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive ClosingDate.
(b) As promptly as practicable, Purchaser acknowledges will file or supply, or cause to be filed or supplied, all applications, notifications, and agrees that information required to be filed or supplied by Purchaser pursuant to Applicable Law in connection with this Agreement and the sale consummation of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwisetransactions contemplated hereby , including, but not limited towithout limitation, any representation or warranty made by all filings required under the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3HSR Act.
(c) As promptly as practicable, Purchaser acknowledges and agrees that except as provided in Section 4.3(d)will use all reasonable efforts to obtain, nothing in this Agreement shall or cause to be deemed to preclude or prohibit Seller from operatingobtained, managing, leasing all Consents (including terminating any Lease for breach without limitation all Governmental Approvals) that are necessary to be obtained by it in order to consummate the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayedtransactions contemplated hereby.
(d) Purchaser agrees will coordinate and cooperate with Company in exchanging such information and supplying such reasonable assistance as may be reasonably requested by Company in connection with the filings and other actions contemplated by Section 8.1.
(e) At all times prior to the Closing Date, Purchaser will promptly notify Company in writing of any fact, condition, event or occurrence that it will not attempt to contact or may result in the failure of any of the tenants conditions contained in Sections 5.2 and 5.3 to be satisfied, promptly upon becoming aware of the Property same.
(f) Except as otherwise required by Applicable Law, Purchaser shall not issue any news release or other public announcement, written or oral, whether by telephone, correspondencein the public press or stockholders' reports (if applicable), or otherwise, relating to the existence of or the performance under this Agreement, without the prior written approval of Company not to be unreasonably withheld or delayed more than ten (10) Business Days.
(g) Purchaser agrees with Company that the certificates evidencing the Warrant, the Warrant Shares, and each certificate issued in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact transfer or exchange of any of the tenants so long forgoing, will bear substantially the following legend: "The securities evidenced by this certificate have not been registered under the Securities Act of 1933 or the securities or blue sky laws of any state, and may not be sold or transferred unless there is an effective registration statement under such Act and any applicable state securities laws covering such securities or such sale or transfer is exempt from the registration and prospectus delivery requirements of such Act and applicable state securities laws. The securities are subject to and entitled to the benefits of a Common Stock Warrant Purchase Agreement and may not be transferred, sold or otherwise disposed of, except as it shall first notify Seller and give Seller therein provided."
(h) Purchaser covenants that in no event will it, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of any the opportunity to review any written communication with Warrant or any of the tenants Warrant Shares or any interest therein (or solicit any offers to buy, purchase, or otherwise transfer, acquire or dispose of the Warrant or any of the Warrant Shares or any interest therein) in violation of the Securities Act, the Exchange Act or applicable state or foreign laws and regulations related to the issuance of securities. Furthermore, Purchaser acknowledges that the Company will place a stop transfer or similar notation in its records that the Warrant and the Warrant Shares cannot be present at any personal meeting transferred absent compliance with the tenants, as applicablerestrictions on transfer described in this Agreement.
Appears in 1 contract
Samples: Common Stock Warrant Purchase Agreement (Heska Corp)
Covenants of Purchaser. The Purchaser covenants and agrees that at all times on and after the applicable Purchase Date for a Purchased Loan:
(a) The Purchaser shall, and shall notify cause its successors and assigns to, maintain the Borrower Benefits for each Borrower of a Purchased Loan as may be receiving Borrower Benefits as of such Purchase Date or as may thereafter qualify to receive such Borrower Benefits in accordance with the terms and conditions established by the Seller promptly if Purchaser becomes aware under the terms of any transactions or occurrence the applicable Loan Documents prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive ClosingPurchase Date.
(b) The Purchaser acknowledges shall comply with all Applicable Law and agrees that Regulation in connection with the sale deconversion, ownership and collection of the Property is made on an "AS ISPurchased Loans. The Purchaser will not violate, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but and will not limited topermit the violation of, any representation laws relating to unfair credit collection practices in connection with the Purchased Loans in a manner that would create or warranty made by expose the Brokers Seller to any claim, demand or assertion that, after the applicable Purchase Date, the Seller, its Affiliates or any representation of their respective employees, agents, attorneys, representatives or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or servicers was in any other document executed and delivered by Seller to Purchaser at Closing as described way involved in Section 4.5(b). Purchaser hereby waives or had in any and all claims which may currently exist or which may arise way authorized any unlawful collection practices in connection with the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3related Purchased Loans.
(c) The Purchaser acknowledges will not use or refer to the Seller’s name, trademark, logo or other identifying marks (or the name of any Affiliate of the Seller) (collectively, “Marks”) for any purpose relating to any Purchased Loan, except that the Purchaser may use the Seller’s Marks in connection with (i) any initial welcome letter that the Purchaser elects to send to Borrowers on Purchased Loans (solely for the purpose of disclosing that the Seller has assigned the applicable Purchased Loan to the Purchaser); provided that the Purchaser shall not send any such welcome letter to any Borrower unless the Seller has approved the form and agrees substance of such letter (such approval not to be unreasonably withheld, conditioned or delayed), (ii) matters relating to Debtor Relief Laws or for the purpose of identifying a Purchased Loan to a Borrower in connection with the collection thereof or identifying to a potential purchaser or lender the chain of title of a Purchased Loan, (iii) communications with Borrowers with respect to Borrower Benefits and similar historical information concerning the Purchased Loans that except occurred or is directly related to the period prior to the applicable Purchase Date, (iv) matters contemplated with respect to the Power of Attorney or (v) the notifications required by Section 5.02(g). Any such use by the Purchaser of the Seller’s Marks shall not in any way disparage the Seller, be injurious to the reputation of the Seller, or cause the Seller to lose goodwill. Except as provided in Section 4.3(d)the Power of Attorney, nothing in this Agreement shall be deemed neither the Purchaser nor anyone acting for the Purchaser will act or purport to preclude act for or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any name of the Leases prior Seller (or any Affiliate of the Seller) with respect to their expiration date without Purchaser's written approval which will not be unreasonably withheld collection of any Purchased Loan or unduly delayedany other matter.
(d) The Purchaser agrees that it will not attempt to contact portray or hold itself out as an agent, partner or joint venture of the Seller (or any Affiliate of the Seller) in connection with any Purchased Loans.
(e) The Purchaser shall not institute or continue any legal, collection or enforcement proceeding in the name of the Seller or any of its predecessors or Affiliates or mislead, whether through misrepresentation or nondisclosure or otherwise, a Borrower or any other Person as to the tenants identity of the Property owner of the Purchased Loans.
(whether f) Upon the written request of the Seller describing in reasonable detail the purpose of such request, the Purchaser shall provide within a reasonable time, at the Seller’s sole cost and expense and subject to restrictions under Applicable Law and Regulation, copies of the books and records relating to the Purchased Loans solely to the extent relating to the period prior to the applicable Purchase Date and to the extent necessary for (i) the preparation of financial statements, regulatory filings or tax returns of the Seller or its Affiliates in respect of periods ending on or prior to the applicable Purchase Date, (ii) responding to matters referred to in Section 5.03, (iii) evaluating and responding to any actual or threatened litigation or other legal or administrative proceedings or inquiries involving the Purchased Loans, (iv) satisfying any audit or regulatory review requirement or (v) assessing or determining the amount of or the basis for any indemnification payment or attempting to cure the related Seller Breach. Notwithstanding anything herein to the contrary, the Purchaser shall not be required to disclose information (a) that is subject to attorney-client or other legal privilege, (b) that is deemed by telephonethe Purchaser in its reasonable judgment to be competitively sensitive or (c) the disclosure of which would conflict with any confidentiality obligations by which the Purchaser is bound.
(g) Within thirty (30) days after the applicable Purchase Date, correspondencethe Purchaser shall notify Borrowers of the assignment and transfer to the Purchaser of the Seller’s interest in the Purchased Loans, and the Purchaser shall direct each Borrower to make all payments thereon directly to the Purchaser, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact otherwise designate. The Seller hereby grants to the Purchaser the authority (i) to make any such notifications on the Seller’s behalf or (ii) to direct ACS or a subservicer or subcontractor to make such notification; provided, that the form and content of any such notification shall be as mutually agreed upon by the Seller and the Purchaser.
(h) The Purchaser understands that the Seller will report the Purchased Loans to the appropriate credit reporting agencies as having been sold to the Purchaser. Except as required by Applicable Law and Regulation, after the applicable Purchase Date, all Borrower inquiries with respect to credit reporting shall be the responsibility of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicablePurchaser.
Appears in 1 contract
Covenants of Purchaser. (a) Purchaser hereby covenants with Seller that, upon any termination of this Agreement, Purchaser shall notify upon Seller's request, furnish to Seller promptly if Purchaser becomes aware copies of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver reports received by Purchaser of in connection with any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale inspection of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except for the presence of Hazardous Materials (as specifically set forth defined in Section 7.25.1(g) hereof), Mold or any Mold Condition (as defined below). EXCEPT FOR CLAIMS BASED ON A BREACH BY SELLER OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 5.1(g), PURCHASER IRREVOCABLY WAIVES ANY CLAIM AGAINST SELLER ARISING FROM THE PRESENCE OF HAZARDOUS MATERIALS OR MOLD OR ANY MOLD CONDITION ON THE PROPERTY OR THE BREACH OF ENVIRONMENTAL LAWS WITH RESPECT TO THE PROPERTY. Upon any termination of this Agreement, Purchaser shall also upon Seller's request, furnish to Seller copies of any other reports received by Purchaser relating to any other inspections of the Property conducted on Purchaser's behalf, if any. Any such reports furnished to Seller shall be furnished at Seller's risk and without representations representation or warranties warranty, express or implied, of any kind whatsoever. “Mold” means mold, mildew, fungus or nature, express, implied other potentially dangerous organisms. “Mold Condition” means the presence or otherwise, including, but not limited to, any representation or warranty made by the Brokers suspected presence of Mold or any representation condition(s) that reasonably can be expected to give rise to or warranty concerning zoningindicate the presence of Mold, financialincluding observed or suspected instances of water damage or intrusion, environmentalthe presence of wet or damp wood, cellulose wallboard, floor coverings or physical condition other materials, inappropriate climate control, discoloration of walls, ceilings or floors, complaints of respiratory ailment or eye irritation by residents, employees or any other occupants or invitees in the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to notice from a governmental agency of complaints regarding the indoor air quality at the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Income REIT, Inc.)
Covenants of Purchaser. Purchaser agrees with Seller as follows:
(a) Until Closing, pursuant to the confidentiality agreement (the "Confidentiality Agreement") contained in Paragraph 4 of Section II of the Letter of Intent dated June 29, 2002, between Purchaser and Seller and pertaining, collectively, to the Acquired Assets and certain other properties of Seller, except as otherwise permitted in this Section 4.02(a), Purchaser shall keep, and shall cause its representatives to keep, confidential all terms and provisions of this Agreement, the transaction contemplated by this Agreement, and all information and data concerning the Acquired Assets and certain other properties of Seller or the business, financial condition, operations, strategies and prospects of Seller; provided that after Closing nothing contained in this Agreement or the Confidentiality Agreement shall restrict the right of Purchaser, as between Purchaser and Seller, to use or disclose information regarding the Acquired Assets. Notwithstanding anything contained in this Section 4.02(a)) to the contrary and insofar as it relates to the Acquired Assets, Purchaser may disclose any of the information subject to the preceding sentence of this Section 4.02(a) or covered by the Confidentiality Agreement to the extent (i) necessary to enforce, or seek redress for breach of, this Agreement, (ii) required by applicable law or the rules of a national securities exchange, (iii) necessary for financing, reserve engineering or accounting purposes, (iv) to comply with any law or legal process, or (v) otherwise previously made public or independently received from a third party having a legitimate right to disclose such information (without breach of the preceding sentence of this Section 4.02(a) or of the Confidentiality Agreement). In addition, Purchaser acknowledges and agrees that without the prior written approval of Seller, Purchaser shall not issue any press releases or make other public statements with respect to this Agreement or the transactions contemplated by this Agreement.
(b) Purchaser shall qualify under applicable law and regulations to own and operate the Acquired Assets and, in particular, Purchaser shall qualify pursuant to the rules and regulations of the BLM to own and operate federal oil and gas leases on land subject to the jurisdiction of the BLM and shall be, as of Closing, in good standing with, and authorized and qualified by, all governmental agencies with jurisdiction or cognizance over such land, to the extent Purchaser is required by such agencies to so qualify and maintain good standing for purposes of ownership and operation of the Acquired Assets.
(c) Except as otherwise provided in this Agreement, Purchaser shall take or cause to be taken all reasonable actions within its control as may be necessary or advisable to consummate and make effective the purchase of the Acquired Assets and the transactions contemplated by this Agreement and to assure that, as of the Closing Date, it will not be under any material corporate, legal or contractual restriction that would prohibit or delay the timely consummation of such transactions.
(d) Purchaser shall take or cause to be taken all reasonable actions to cause all the representations and warranties of Purchaser contained in this Agreement to be true and correct on and as of the Closing Date, other than such as are made as of a specific date. To the extent the conditions precedent to the obligations of Seller are within the control of Purchaser, Purchaser shall cause such conditions to be satisfied on or prior to the Closing Date and, to the extent the conditions precedent to the obligations of Seller are not within the control of Purchaser, Purchaser shall take or cause to be taken all such commercially reasonable actions as may be necessary to cause such conditions to be satisfied on or prior to the Closing Date.
(e) Purchaser shall notify Seller promptly if Purchaser becomes aware (i) upon learning of any transactions change in fact or occurrence prior to the Closing Date which would make circumstance that causes any representation or warranty of the representations or warranties of Seller Purchaser contained in this Agreement untrue to no longer be accurate and complete or (ii) if Purchaser fails to perform or comply with any covenant or agreement contained in this Agreement or it is reasonably anticipated that Purchaser will be unable to perform or comply with any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser covenant or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closingagreement contained in this Agreement.
(bf) Purchaser acknowledges and agrees that the sale Upon learning of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Sellersame, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to accordance with the provisions of Section 8.1(b) and for 5.01, Purchaser agrees to notify Seller promptly of any default discovered after Closing to the provisions of Section 10.3.
Title Defect (c) Purchaser acknowledges and agrees that except as provided defined in Section 4.3(d5.05), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Covenants of Purchaser. The Purchaser covenants and agrees with each of the TargetCo Shareholders and TargetCo that, until the earlier of the Closing Date and the date upon which this Agreement is terminated in accordance with Article VII, it will:
(a) in a timely and expeditious manner:
(i) prepare, in consultation with TargetCo, the Disclosure Documents in prescribed form and in form and content acceptable to TargetCo, acting reasonably;
(ii) if required, obtain the Purchaser shall notify Seller promptly if Shareholder’s Approval of the Transaction;
(iii) obtain the Purchaser becomes aware of any transactions or occurrence prior Shareholder’s Approval to authorize the alteration to the Closing Date which would make any Purchaser’s notice of articles and articles in order to change the Purchaser’s authorized capital to include an unlimited number of Class A Common Shares, having the special rights and restrictions as set forth in Schedule “C” hereto, and to take all other necessary actions, including the filing of the representations notice of alteration with the BC Registrar of Companies, to effect such alteration to the Purchaser’s notice of articles and articles;
(iv) file and/or deliver any document or warranties of Seller contained documents as may be required in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from order for the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser Transaction as contemplated herein to be untrue at effective; and
(v) file and/or deliver any document or prior documents required pursuant to Applicable Laws in connection with the Transaction as contemplated herein after the Closing, shall not survive Closing.;
(b) Purchaser acknowledges and agrees ensure that the sale of the Property is made on an "AS ISDisclosure Documents do not contain a misrepresentation as it relates to Purchaser, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth including in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations respect of its Permittees assets, liabilities, operations, business and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.properties;
(c) to make available and afford TargetCo and its authorized representatives and, if requested by TargetCo, provide a copy of all title documents, contracts, financial statements, minute books, share certificate books, if any, share registers, plans, reports, licences, orders, permits, books of account, accounting records, constating documents and all other documents, information and data relating to Purchaser. The Purchaser acknowledges will afford TargetCo and agrees that except its authorized representatives every reasonable opportunity to have free and unrestricted access to Purchaser’s property, assets, undertaking, records and documents. At the request of TargetCo, Purchaser will execute or cause to be executed such consents, authorizations and directions as provided in Section 4.3(d), nothing in this Agreement shall may be deemed necessary to preclude permit any inspection of Purchaser’s business and any of its property or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) to enable TargetCo or its authorized representatives to obtain full access to all files and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior records relating to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld assets of Purchaser maintained by governmental or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or other public authorities. The obligations in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.this Section
Appears in 1 contract
Samples: Share Exchange Agreement
Covenants of Purchaser. RELATING TO REGISTRATION. Purchaser and, by virtue of such Holder's acquisition of Registrable Securities, each Holder, covenants and agrees as follows:
(ai) Purchaser shall notify Seller and such Holder will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with any sales of Registrable Securities pursuant to a Registration Statement;
(ii) Upon receipt of a notice from the Company of the occurrence and continuation of a Discontinuation Event (as defined below), Purchaser or such Holder will forthwith discontinue disposition of such Registrable Securities under the applicable Registration Statement until Purchaser's or such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement, which the Company will prepare and file, and use its commercially reasonable efforts to cause to be declared effective, as promptly if Purchaser becomes aware as practicable after the occurrence of the Discontinuation Event, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any transactions additional or occurrence prior supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this Section. For purposes of this Section 2(d), a "Discontinuation Event" shall mean (i) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; (ii) any request by the Commission or any other Federal or applicable state governmental authority for amendments or supplements to such Registration Statement or Prospectus; (iii) the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement covering any or all of the Registrable Securities and the issuance of the Warrant Shares or the initiation of any Proceedings for that purpose; (iv) the receipt by the Company of any notification with respect to the Closing Date which would make suspension of the qualification or exemption from qualification of any of the representations Registrable Securities for sale in any jurisdiction, or warranties the initiation or threatening of Seller contained any Proceeding for such purpose; and/or (v) the occurrence of any event (not arising from the fraud, negligence or willful misconduct of the Company) or passage of time that makes the financial statements included in this Agreement such Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect. Purchaser's failure respect or that requires any revisions to such Registration Statement, Prospectus or other documents so notify Seller shall constitute a waiver by Purchaser that, in the case of any liability of Seller to Purchaser such Registration Statement or its designee arising from Prospectus, as the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Propertycase may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be doing so predicated upon its own independent investigationsstated therein or necessary to make the statements therein, the investigations of its Permittees and the representations and warranties in light of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims circumstances under which may currently exist or which may arise in the futurethey were made, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.misleading; and
Appears in 1 contract
Covenants of Purchaser. (a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, Closing shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS IS, WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, Property it will be doing so predicated upon its own independent investigations, the investigations investigation of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives waives, releases, covenants not to sxx and forever discharges Seller, its partners, officers, directors, contractors, employees and agents and other persons acting on behalf of Seller, of and from any and all claims claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which may currently exist Purchaser now has or which may arise in the futurefuture on account of or growing out of or in connection with any physical characteristics or existing condition including, by contractwithout limitation, common law or statute currently in effectsubsurface conditions, as amended or subsequently enactedsolid and hazardous wastes, and which relate to the Property or environmental conditions Hazardous Materials on, under, or near related to the Property, or any applicable law or regulation. Purchaser acknowledges that (i) Seller has afforded Purchaser the opportunity for a full and complete investigation, examination and inspection of the Property and are (ii) the purchase price reflects the agreement of Purchaser not to pursue or assert any claims against Seller arising out of environmental matters. Purchaser acknowledges that this clause is a negotiated part of this Agreement and serves as an essential component of consideration for the Property. The release contained under this clause includes, but is not limited to, the release by Purchaser of Seller from all claims, rights of contribution or other rights or remedies against Seller pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. Purchaser hereby does not waive its claims which arise as a direct result of a default of this Agreement by Seller, in which latter event event, Purchaser's exclusive remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3. Other than as provided for herein, Purchaser hereby waives any and all claims, rights, remedies or otherwise arising out of or in connection with this sale at law or in equity.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval approval, which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or and to be present at any personal meeting with the tenants, as applicable. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit or restrict Purchaser from contacting a Tenant if such Tenant is an occupant/tenant of any other shopping center owned by Purchaser. With regard to any such contact, Purchaser agrees that they will not have a substantial conversation regarding Rivertree Court with any such Tenants without notifying Seller and obtaining Seller's prior written agreement.
Appears in 1 contract
Samples: Purchase Agreement (JMB Income Properties LTD Xiii)
Covenants of Purchaser. Until all of the Assumed Liabilities have been satisfied, and the satisfaction of the Subordinated Deed of Trust, Purchaser covenants to do the following:
(a) As controller of the Architectural Review Board as Declarant, cause the Detached Units, if any, that may be built by Purchaser on Single-Family Lots to be constructed in conformance with the Single-Family Architectural Guidelines;
(b) Comply with the applicable registration requirements with respect to the sale by Purchaser of Units and/or Lots under federal law, and comply with the applicable registration requirements under the laws of all states in which Purchaser is offering Units and/or Lots for sale
(c) Comply with all applicable federal and state laws regarding the solicitation of purchasers for Units, including, without limitation, all applicable federal and state laws regarding advertising;
(d) Manage, or cause to be managed, the twelve (12) existing condominium units governed by the Club Cottages Declaration;
(e) Maintain, with funds collected pursuant to the Declarations, the common areas, if any, of the Master Association and of the Individual Associations provided that any amounts in excess of those collected pursuant to the Declarations that are required to maintain such common areas shall be the sole responsibility of, and shall be promptly paid to Purchaser by, Seller; further provided, that Seller shall pay to Purchaser a fee for such service in an amount to be agreed upon by Seller and Purchaser by December 1, 1998;
(f) Conduct the administrative services of the Master Association and Individual Associations, including but not limited to setting budgets and collecting fees and dues, all as set forth on Exhibit V, Schedule of Administrative Services, attached hereto and made a part hereof;
(g) At the end of each calendar year provide Seller with copies of Sales Agreements, evidence of compliance with laws referenced in Paragraph 15(b) and of the RESPA statements provided to Third-Party Purchasers in connection with the closings of any portions of the Properties;
(h) Continue to be a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and duly qualified and in good standing under the laws of the State of North Carolina, with full power to conduct its business as presently conducted, the controlling member of which shall be CMC Heartland Partners, a Delaware general partnership;
(i) Pay the real estate taxes payable with respect to the Properties;
(j) maintain general liability insurance, in a reasonable amount, with respect to the improvements constructed on the Properties (so long as the portions of the Properties on which such improvements are located shall be owned by Seller), and name Seller as an additional insured under the insurance policy providing such general liability insurance;
(k) maintain automobile liability insurance, in reasonable amounts, with respect to such of the Properties as are owned by Seller, and name Seller as an additional insured under the insurance policy providing such automobile liability insurance;
(l) maintain workmen's compensation insurance, in the statutorily-required amount, with respect to such of the Properties as are owned by Seller;
(m) cause any broker conducting sales of the Properties to keep its North Carolina real estate broker's license in full force and effect;
(n) cause each such person who shall be acting as a general contractor for Purchaser with respect to the construction of improvements on the Properties to keep its North Carolina general contractor's license in full force and effect;
(o) cause the Tract Units, if any, constructed by Purchaser on the Meadow Parcel to be of generally the same exterior architectural design, and the same general quality in terms of materials and labor, as the Tract Units already constructed by Seller and Purchaser on abutting land.
(p) cause the Tract Units, if any, constructed by Purchaser on any Property other than the Meadow Parcel or the Club Cottages Parcel to have the same general quality in terms of materials and labor as, other units in the Development;
(q) comply with the terms and conditions of this Agreement; and
(r) pay all sums due to Seller and Mxxxxx pursuant to the terms of this Agreement.
(s) For the period from the date of this Agreement to December 31, 2005, conduct the Marketing Program in a fashion and with the same level of personnel and expenditures which is described on Exhibit W, attached hereto. In addition to any other right of Seller in this Agreement at law or equity, if Purchaser shall notify default in any of its covenants or obligations set forth in this paragraph 15, and such default shall continue for a period of thirty (30) days after receipt by Purchaser of a written notice from Seller promptly reasonably describing such default (of if such default is of a non-monetary nature and cannot be cured within said 30-day period, but Purchaser becomes aware of any transactions or occurrence prior has commenced to the Closing Date which would make cure such default and diligently prosecutes such cure to completion, such additional time as shall be reasonably necessary to cure such default), Seller may, at its election, do any of the representations or warranties following: (A)exercise Seller's rights as Seller may then be entitled to exercise under the provisions of Seller contained in this Agreement, (ii) enforce specific performance of this Agreement untrue against Purchaser (iii) exercise Seller's rights under the Assumption and Indemnity Agreement (Longleaf) and Assumption and Indemnity Agreement (GID) (iv) exercise Seller's rights under the Subordinated Deed of Trust or (v) exercise any other remedy available at law or equity and (B) in any material respect. event, recover damages from Purchaser for Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from comply with the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations covenants and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically obligations set forth in Section 7.2this paragraph 15 (including, without representations limitation, attorneys' fees and expenses). Notwithstanding anything to the contrary contained in this Agreement, in the event of such default, Seller's recovery of damages shall be limited to direct and actual damages, and shall exclude any right to recover indirect, consequential or warranties of incidental damages. In addition to any kind other right or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition obligations of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges parties that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigationssurvive a termination of this Agreement, the investigations covenants of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default under paragraph 15 of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3survive.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Heartland Partners L P)
Covenants of Purchaser. Purchaser understands that the Company is a party to that certain Right of First Refusal Agreement dated August 7, 1996, by and between the Company and Sofinov Societe financiere d'innovation Inc. ("Sofinov")(the "Refusal Agreement"). Under the terms of that Refusal Agreement, and as a material condition to the Company's obligations hereunder, Purchaser shall execute and deliver to the Company, at the Closing, a counterpart signature page to the Refusal Agreement and shall be bound by the terms and conditions of the Refusal Agreement. Purchaser shall not resell or offer to resell any of the Shares, except in compliance with all applicable terms and conditions set forth in this Agreement (including, without limitation, all applicable terms, conditions and limitations set forth under Section 3 of this Agreement) and the requirements of Regulation S. Purchaser shall not resell or offer to resell any of the Shares in the United States or to any person in the United States, to any U.S. Person or to others for the benefit or account of any U.S. Person, at any time before the expiration of the Restricted Period. Without limiting the application of any of the remaining conditions set forth in this Section 8.1, Purchaser shall in no case resell or offer to resell any of the Shares before expiration of the Restricted Period, unless each of the following additional conditions is satisfied:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware The prospective subsequent purchaser certifies that such purchaser is not a U.S. Person and is not acquiring the Shares for the account or benefit of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.U.S. Person;
(b) Purchaser acknowledges and The prospective subsequent purchaser agrees that to resell all such Shares in accordance with Regulation S, pursuant to a registration under the Securities Act or pursuant to an available exemption from registration; and
(c) Under the terms of the sale to such prospective subsequent purchaser, each certificate evidencing all such Shares to be transferred must contain a legend to the effect that transfer of such Shares is prohibited except in accordance with Regulation S, which may be in the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically form set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default 7.1 of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Agreement.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Hydrogen Burner Technology Inc)
Covenants of Purchaser. The Purchaser hereby covenants and agrees with the Vendor that the Purchaser will:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware indemnify the Vendor and save the Vendor harmless from and against any and all damages, losses, liabilities, costs and expenses (including legal fees) at any time suffered or incurred by the Vendor as a result of any transactions damage or occurrence prior injury to the Closing Date which would make any of Purchased Property resulting from the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver exercise by the Purchaser of its rights under paragraph 6.1(a), or as a result of any liability personal injury (including death resulting at any time therefrom) occurring on or about the Premises or any loss of Seller or damage to Purchaser property occurring on or its designee arising about the Premises resulting from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed exercise by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.of its rights under paragraph 6.1(a);
(b) Purchaser acknowledges pay all social service tax, sales taxes, goods and agrees services tax, registration charges, and transfer fees payable as a result of the purchase, sale and transfer of the Purchased Property, provided that it is understood that the sale Purchaser shall not be responsible for any costs of the Property is made on an "AS ISVendor, WHEREas Receiver-IS WITH ALL FAULTS" basis andManager, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition respect of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.transactions contemplated hereunder;
(c) Purchaser acknowledges from and agrees that except after the Closing Date, at the request and expense of the Vendor, provide the Vendor with access to such former employees of the Vendor and/or DCII and access to or copies of Books and Records as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach are required by the tenant) and repairing the Property Vendor in the same manner order to properly discharge its duties as the same was operated, managed, leased, Receiver-Manager of DCIC and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.DCII;
(d) Purchaser agrees that it assume all obligations of DCIC, DCII or the Receiver-Manager relating to the Purchased Property and will not attempt indemnify and save harmless the Vendor from any and all loss whatsoever arising out of, or pursuant to contact any claims, demands, suits, actions, costs and expenses suffered or incurred by, or brought against, the Vendor in respect of the tenants obligations referred to above; and
(e) on or before 4:00 p.m. PDST, September 11, 1998, the Purchasers will place in trust with the Solicitors for the Purchaser the sum of $13,250,000.00, which funds will be held pursuant to the terms of the Property (whether by telephoneEscrow Agreement. Failing such payment, correspondence, or in person) until such time, if ever, as the Inspection Period Vendor shall have expired no obligation to seek Court Approval and Purchaser has not given Seller a Notice the Vendor shall be at liberty to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller exercise all other rights and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicableremedies under this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Digital Generation Systems Inc)
Covenants of Purchaser. During the period from the date hereof to the Closing Date, Purchaser shall:
(a) Purchaser comply promptly with all requirements that applicable Legal Requirements may impose upon it with respect to the transactions contemplated by this Agreement, and shall notify cooperate promptly with, and furnish information to, Seller promptly if Purchaser becomes aware in connection with any such requirements imposed upon Seller or upon any of any transactions Seller's Affiliates in connection therewith or occurrence herewith;
(b) use its best efforts to bring about the satisfaction of the conditions precedent to Closing set forth in Section 7.2 of this Agreement;
(c) deliver to Seller prior to the Closing Date which would make a written statement disclosing any of the representations or warranties of Seller contained untrue statement in this Agreement untrue in or any Schedule hereto (or supplement thereto) or document furnished pursuant hereto, or any omission to state any material respect. Purchaser's failure fact required to so notify make the statements herein or therein contained complete and not misleading, promptly upon the discovery of such untrue statement or omission, accompanied by a written supplement to any Schedule to this Agreement that may be affected thereby; provided, however, that the disclosure of such untrue statement or omission shall not prevent Seller shall constitute a waiver by Purchaser of from terminating this Agreement pursuant to Section 8.1 hereof at any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue time at or prior to Closing, shall not survive Closing.the Closing in respect of any original untrue or misleading statement;
(bd) promptly, and in any event within two business days of Purchaser acknowledges obtaining knowledge thereof, notify Seller in writing of:
(i) any breach of any term or provision of this Agreement on the part of Purchaser, whether or not any requirement for notice or lapse of time or other condition precedent has been satisfied, which is then continuing, together with a certificate of Purchaser specifying the details thereof and agrees the action which Purchaser has taken or proposes to take with respect thereto;
(ii) any pending or threatened Action, challenging this Agreement or any of the transactions contemplated hereby;
(iii) any notice or other communication from any third party alleging that the sale consent of such party is or may be required in connection with the transactions contemplated by this Agreement;
(iv) any other development which would prevent or raise a substantial doubt regarding the possibility of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically satisfaction of any condition set forth in Section 7.2, without representations 7.2 of this Agreement; and
(v) any notice or warranties of other communication from any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigationsGovernmental Entity, the investigations approval or consent of its Permittees and the representations and warranties of the Sellers expressly made herein or which is being sought in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting connection with the tenants, as applicabletransactions contemplated by this Agreement.
Appears in 1 contract
Covenants of Purchaser. During the period from the date hereof to the Closing Date, Purchaser shall:
(a) Purchaser shall notify Seller comply promptly if Purchaser becomes aware of any transactions or occurrence prior with all requirements that applicable Legal Requirements may impose upon it with respect to the Closing Date which would make transactions contemplated by this Agreement, and shall cooperate promptly with, and furnish information to, the Shareholders in connection with any such requirements imposed upon the Shareholders or the Company or upon any of the representations Company"s affiliates in connection therewith or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.herewith;
(b) use its reasonable best efforts to obtain any consent, authorization or approval of, or exemption by, any Person required to be obtained or made by Purchaser acknowledges and agrees that in connection with the sale transactions contemplated by this Agreement; and
(c) use its reasonable best efforts to bring about the satisfaction of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically condition precedent to Closing set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed8.2 .
(d) promptly advise Shareholders orally and, within three (3) business days thereafter, in writing of any change in such Purchaser"s business or condition that has had or may have a Material Adverse Effect; and
(e) deliver to Shareholders prior to the Closing a written statement disclosing any untrue statement in this Agreement or any Schedule provided by Purchaser agrees that it will not attempt to contact any of the tenants of the Property hereto (whether by telephone, correspondenceor supplement thereto) or document furnished pursuant hereto, or in personany omission to state any material fact required to make the statements herein or therein contained complete and not misleading, promptly upon the discovery of such untrue statement or omission, accompanied by a written supplement to any Schedule provided by Purchaser to this Agreement that may be affected thereby; provided, however, that the disclosure of such untrue statement or omission shall not prevent Shareholders from terminating this Agreement pursuant to Section 9.1(c) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present hereof at any personal meeting with time at or prior to the tenants, as applicableClosing in respect of any original untrue or misleading statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (U S Plastic Lumber Corp)
Covenants of Purchaser. (a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, Closing shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS IS, WITH ALL FAULTS" basis and, except as specifically set forth in Section Paragraph 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, Property it will be doing so predicated upon its own independent investigations, the investigations investigation of its Permittees and the representations and warranties of the Sellers Seller expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b)Paragraph subject to the terms of this Agreement. Purchaser hereby waives waives, releases, covenants not to sxx and forever discharges Seller, its partners, officers, directors, contractors, employees and agents and other persons acting on behalf of Seller, of and from any and all claims claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which may currently exist Purchaser now has or which may arise in the futurefuture on account of or growing out of or in connection with any physical characteristics or existing condition including, by contractwithout limitation, common law or statute currently in effectsubsurface conditions, as amended or subsequently enactedsolid and hazardous wastes, and which relate to the Property or environmental conditions Hazardous Materials on, under, or near related to the Property, or any applicable law or regulation. Purchaser acknowledges that (i) Seller has afforded Purchaser the opportunity for a full and complete investigation, examination and inspection of the Property and are (ii) the purchase price reflects the agreement of Purchaser not to pursue or assert any claims against Seller arising out of environmental matters. Purchaser acknowledges that this clause is a negotiated part of this Agreement and serves as an essential component of consideration for the Property. The release contained under this clause includes, but is not limited to, the release by Purchaser of Seller from all claims, rights of contribution or other rights or remedies against Seller pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. Purchaser hereby does not waive its claims which arise as a direct result of a default of this Agreement by Seller, in which latter event event, Purchaser's exclusive remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) Paragraph and for any default discovered after Closing to the provisions of Section 10.3Paragraph . Other than as provided for herein, Purchaser hereby waives any and all claims, rights, remedies or otherwise arising out of or in connection with this sale at law or in equity.
(c) Purchaser acknowledges and agrees that except as provided in Section Paragraph 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval approval, which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or and to be present at any personal meeting with the tenants, as applicable. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit or restrict Purchaser from contacting a Tenant if such Tenant is an occupant/tenant of any other shopping center owned by Purchaser. With regard to any such contact, Purchaser agrees that they will not have a substantial conversation regarding the Property with any such Tenants without notifying Seller and obtaining Seller's prior written agreement.
Appears in 1 contract
Samples: Purchase Agreement (Ids JMB Balanced Income Growth LTD)
Covenants of Purchaser. The Purchaser hereby agrees and covenants as follows:
(a) For a period of forty (40) days following the closing of the purchase and sale of the Shares under this Agreement (the "Restricted Period"), the Purchaser shall notify Seller promptly if not (i) engage in any activity for the purpose of, or which may reasonably be expected to have the effect of, conditioning the market in the United States for the Shares, or (ii) offer or sell the Shares in the United States or to, or for the account or benefit of, a U.S. Person. The Purchaser becomes aware shall not deliver this Agreement to any person (other than its professional advisers). The Purchaser understands that the Shares are transferable only on the books of the Company and its transfer agent and that the Company and its transfer agent may have their own policies with respect to the registration or transfer of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.Shares;
(b) unless registered under the Securities Act, any proposed offer, sale or transfer of any of the Shares purchased by the Purchaser acknowledges hereunder during the Restricted Period shall be subject to the condition that (i) neither record nor beneficial ownership of the Shares evidenced thereby has been offered or sold in the United States or to, or for the account or benefit of, any U.S. Person, (ii) the Purchaser shall have received and agrees delivered to Seller a written certification of the proposed transferee that such transferee (or any account for which such transferee is acquiring such Shares) is not a U.S. Person, is acquiring such Shares for such
(c) all offering materials and documents (other than press releases) used in connection with offers and sales during the Restricted Period of any of the Shares purchased by the Purchaser hereunder shall include statements to the effect that the sale Shares have not been registered under the Securities Act and may not be offered or sold in the United States or to U.S. Persons (other than distributors) unless the Shares are registered under the Securities Act, or an exemption from the registration requirements of the Property Securities Act is made on an "AS ISavailable, WHERE-IS WITH ALL FAULTS" basis andand such statements shall appear as required under Rule 902(h)(2) promulgated under the Securities Act;
(d) the Purchaser agrees that, except prior to the expiration of the Restricted Period, it will not enter into any short sales or sales against the box involving Westxxxxxxxx Xxxmon Stock or any derivative security position involving Westxxxxxxxx Xxxmon Stock that increases in value as specifically set forth in Section 7.2, without representations or warranties the value of any kind or nature, express, implied or otherwisethe Shares decreases, including, but not limited to, any representation a long put option, short call option or warranty made by the Brokers other put-equivalent position, equity swaps or any representation or warranty concerning zoning, financial, environmentalother "hedging" agreement with regard to any of the Shares by which any such Purchaser shifts any of the economic risk relating to the Shares to, or physical condition of for the Propertyaccount or benefit of, U.S. Persons or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to into the Property. United States;
(e) the Purchaser understands and acknowledges that if it elects to purchase re-offers all or any part of the Property, it will be doing so predicated upon its own independent investigationsShares in the United States, the investigations Purchaser (and/or certain persons who participate in any such re-offer) may be deemed, under certain circumstances, to be an "underwriter" as defined in section 2(11) of the Securities Act; and
(f) the Purchaser will not, directly or indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) its Permittees rights under this Agreement or the Shares otherwise than in compliance with this Agreement and the representations Securities Act, any applicable state securities or blue sky laws and warranties any applicable securities laws of jurisdictions outside the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enactedUnited States, and which relate to the Property or environmental conditions on, under, or near the Property rules and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3regulations promulgated thereunder.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Covenants of Purchaser. 5.01 The Purchaser hereby covenants and agrees with the Vendor that after the Date of Closing it will:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware of any transactions or occurrence prior subject to the Closing Date which would make any provisions of sub-paragraph 5.01(h), timely perform and record all assessment work as may be required in order to maintain the representations or warranties of Seller contained claims comprising the Property in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue good standing at or prior to Closing, shall not survive Closing.all times;
(b) prior to the Date of Closing, conduct only due diligence and confirmatory work (and no new exploration work) on the Property;
(c) carry on all operations on the Property in compliance with all applicable governmental regulations and restrictions;
(d) pay or cause to be paid any rates, taxes, duties, royalties, assessments or fees levied with respect to the Property or its operations thereon;
(e) indemnify and hold the Vendor harmless from any and all liabilities, costs, damages or charges arising from the failure of the Purchaser acknowledges to comply with the covenants contained in this article or otherwise arising from its operations on the Property;
(f) allow the Vendor or any duly authorized agent or representative of the Vendor to inspect the Property upon giving the Purchaser 48 hours written notice; PROVIDED HOWEVER that it is agreed and agrees understood that the sale of Vendor or any such agent or representative shall not interfere with the Purchaser's activities on the Property is made on an "AS ISand shall be at his own risk and that the Purchaser shall not be liable for any loss, WHERE-IS WITH ALL FAULTS" basis anddamage, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made injury incurred by the Brokers Vendor or any representation its agents or warranty concerning zoning, financial, environmental, or physical condition representatives arising from their inspection of the Property, however caused;
(g) allow the Vendor access on a confidential basis at all reasonable times and intervals to all factual maps, reports, assay results and other factual technical data prepared or any income, expenses, charges, liens, encumbrances, rights, claims obtained by the Purchaser in connection with its operations on or affecting or pertaining to the Property. ;
(h) in the event that the Purchaser acknowledges that if it elects wishes to purchase abandon its interest in the Property, it shall give the Vendor not less than 120 days notice of such abandonment, and if the Vendor gives notice to the Purchaser within 30 days of receipt of the Purchaser’s notice that it wishes to re-acquire the Property, the Purchaser shall transfer its entire interest in the Property to the Vendor, and shall deliver to the Vendor the information and data acquired by the Purchaser in the course of its exploration of the Property, for the sum of $10, and each disposition comprising the Property shall be free and clear of all charges, liens and encumbrances and will be doing so predicated upon its own independent investigationsin good standing for at least six months from the date of the transfer; and
(i) on the written request of the Vendor, the investigations Purchaser shall promptly file such registration statements with the SEC as are necessary to enable each of its Permittees 455702 and Young to lawfully trade in the representations and warranties US the shares of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3issued hereunder.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Option Agreement (Tecton Corp)
Covenants of Purchaser. (a) No later than seven (7) Business Days prior to the Closing, the Purchaser shall distribute at its sole expense in the Purchaser's usual fashion to customers of the Seller whose Deposit accounts are expected to be assumed by the Purchaser having checking, money market deposit and/or NOW or SuperNOW accounts at the Branch Office, an initial supply of new basic checks, deposit tickets or other similar instruments and ATM cards, which shall be appropriately encoded with the Purchaser's routing numbers and with accurate account numbers for use by such customers following the Closing Date. The Purchaser shall notify such customers that (i) following the Closing Date customers of the Branch are to use the new checks issued by the Purchaser and are not to use any remaining checks, deposit tickets or other Items or any ATM cards previously issued by the Seller promptly if Purchaser becomes aware which may be in the possession of such customers and (ii) upon the expiration of a period of ninety (90) calendar days from and after the Closing Date (the "Post-Transfer Processing Period"), any transactions or occurrence Items which are drawn on the Seller shall not thereafter be honored by the Seller. Such notice shall be given by delivering written instructions to such effect to such customers no fewer than thirty (30) days prior to the Closing Date which would make any and by posting signs in the Branch Office beginning no later than thirty (30) days prior to the Closing Date and during the Post-Transfer Processing Period. The form of such notice shall be subject to the prior approval of the representations or warranties of Seller contained in this Agreement untrue in any material respectSeller, which shall not be unreasonably withheld. Purchaser's failure to so notify In the event that the Seller shall constitute so request at any time(s) during the Post-Transfer Processing Period, the Purchaser shall use all reasonable efforts to notify particular customers to stop using the Seller's checks and to stop attempting to make deposits through Seller into the Transferred Accounts. The Purchaser will use best efforts to be in a waiver position to process the Transferred Accounts on its system from and after the Closing Date. Subject to the terms of Section 16.2, Purchaser and Seller will mutually determine any documents, instruments and/or notices to be given to other holders of Deposit accounts to be assumed by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closinghereunder.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining Prior to the Property. Closing Date, Purchaser acknowledges that if it elects to purchase shall establish and during the Property, it will be doing so predicated upon its own independent investigationsPost-Transfer Processing Period, the investigations of its Permittees Purchaser shall maintain a no fee demand deposit account at the Seller ("Purchaser's DDA") and hereby authorizes the Seller to debit and credit the Purchaser's DDA as provided below in this Article XV. The Purchaser and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate shall identify to the Property other and make available on a daily basis individuals to serve as liaisons between the Purchaser and Seller in order to resolve any settlement or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing other reconciliation issues relating to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Transferred Accounts.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Branch Purchase & Assumption Agreement (Independent Bank Corp)
Covenants of Purchaser. Purchaser hereby covenants and agrees that: (a) Purchaser it shall notify Seller promptly if Purchaser becomes aware not sell or otherwise transfer any Preferred Interests except pursuant to a registration statement declared effective under, or an exemption from the registration requirements of, the Securities Act; (b) none of it, any of its Affiliates or any person acting on behalf of it or any such Affiliate shall solicit any offer to buy or offer to sell any Preferred Interests by means of any transactions form of general solicitation or occurrence prior general advertising; and (c) it shall use any shares of NRG Common Stock it receives pursuant to the Closing redemption and exchange of any Preferred Interests to close out open share borrowings created in the course of its hedging activities related to its exposure under the transactions contemplated by the Transaction Documents. 8. Conditions to Purchaser’s Obligations. The obligation of Purchaser to pay any Daily Funding Amount on any Funding Date which would make any is subject to satisfaction of each of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller following conditions: 10
(a) each Transaction Document shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed have been duly executed and delivered by the parties hereto that such representations thereto, and warranties known by Purchaser each of the Company and NRG CSF shall have complied with all agreements and all conditions to be untrue at performed or satisfied by it under each Transaction Document to which it is a party on or prior to Closing, shall not survive Closing.
such Funding Date; (b) Purchaser acknowledges and agrees that shall have received the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth Preferred Interests described in Section 7.2, without representations or warranties 3 duly executed and delivered by Issuer; (c) each of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or Issuer contained in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in and each Transaction Document to which latter event Purchaser's remedies it is a party shall be limited for any such default prior true and correct; (d) the Company shall have made a contribution in Cash to Closing Issuer in an amount not less than $5,000 to satisfy anticipated operating costs of Issuer; (e) the provisions of Section 8.1(b) and for any default discovered after Closing to Company shall have paid the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except Structuring Fee as provided in the Fee Agreement; (f) without limiting the generality of Section 4.3(d8(a), nothing the Company shall have made a contribution of Cash to Issuer pursuant to the Common Equity Interest Purchase Agreement equal to the product of the Common Equity Funding Percentage and the Daily Notional Amount for the Scheduled Trading Day in this Agreement the Reference Period corresponding to such Funding Date, and Issuer shall be deemed have purchased on such Scheduled Trading Day the Purchased Shares for such Scheduled Trading Day; (g) Purchaser shall have received an opinion (in form and substance satisfactory to preclude or prohibit Seller from operatingPurchaser and its counsel), managingdated as of the Issue Date, leasing of Xxxxxxxx & Xxxxx LLP, counsel for Issuer, substantially in the form attached hereto as Exhibit C; (h) Purchaser shall have received “non-consolidation” and “true contribution” opinions, in form and substance reasonably satisfactory to Purchaser and its counsel, dated as of the Issue Date, of Xxxxxxxx & Xxxxx LLP, counsel for Issuer; (i) Issuer shall have furnished to Purchaser such further certificates and documents as Purchaser shall reasonably request (including terminating any Lease for breach an officer’s certificate of an officer of the Company) to the effect that, during the Reference Period, the Company could have purchased shares of NRG Common Stock with an aggregate purchase price equal to the aggregate amount of Cash contributed by the tenant) and repairing Company to Issuer pursuant to the Property Issuer Common Equity Interest Purchase Agreement in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication compliance with any of the tenants or to be present at any personal meeting with the tenants, as applicable.Delaware law;
Appears in 1 contract
Covenants of Purchaser. (a) Purchaser hereby covenants with Seller that Purchaser shall, in connection with its investigation of the Property during the Inspection Period, inspect the Property for the presence of Hazardous Substances (as defined in this Section 5.7), and shall notify furnish to Seller promptly if Purchaser becomes aware copies of any transactions or occurrence prior reports received by Purchaser in connection with any such inspection, provided Seller pays Purchaser for the actual cost of obtaining copies of such report(s). Prior to the Closing Date which would make any expiration of the representations Inspection Period, in the event that such reports, tests or warranties studies indicate that additional investigation may be required, either Seller or Purchaser may request (at the cost of the party requesting same) that such additional investigation be undertaken provided that neither Seller contained in nor Purchaser shall be obligated to undertake any such additional investigation, neither shall undertake such additional investigation without the written consent of the other, and either Purchaser or Seller shall be entitled to terminate this Agreement untrue in rather than proceed with any material respect. Purchaser's failure to so notify Seller such additional investigation, whereupon fifty percent (50%) of the Xxxxxxx Money shall constitute a waiver by Purchaser of any liability of Seller be returned to Purchaser and neither party hereto shall have any further rights, obligations or its designee liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Purchaser hereby assumes full responsibility for such inspections and irrevocably waives any claim against Seller arising from the untruth presence of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made Hazardous Substances on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects shall also furnish to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations Seller copies of its Permittees and the representations and warranties any other reports received by Purchaser relating to any other inspections of the Sellers expressly made herein or in Property conducted on Purchaser’s behalf, if any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives (including, specifically, without limitation, any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to reports analyzing compliance of the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to with the provisions of Section 8.1(b) the Americans with Disabilities Act (“ADA”), 42 X.X.X. §00000, et seq., if applicable), provided Seller pays Purchaser for the actual cost of obtaining copies of such report(s). As used herein, “Hazardous Substances” means all hazardous or toxic materials, substances, pollutants, contaminants, or wastes currently identified as a hazardous substance or waste in the Comprehensive Environmental Response, Compensation and for Liability Act of 1980 (commonly known as “CERCLA”), as amended, the Superfund Amendments and Reauthorization Act (commonly known as “XXXX”), the Resource Conservation and Recovery Act (commonly known as “RCRA”), or any default discovered after Closing other federal, state or local legislation or ordinances applicable to the provisions of Section 10.3Property.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Covenants of Purchaser. Purchaser covenants and agrees that, from the date of this Agreement until the earlier of the Effective Date or termination of this Agreement, except with the prior written consent of Company (not to be unreasonably withheld, delayed or conditioned), and except as otherwise expressly permitted or specifically contemplated by this Agreement (including the Plan of Arrangement) or required by Applicable Laws:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware will use its commercially reasonable efforts to satisfy or cause the satisfaction of any transactions or occurrence prior the conditions set forth in Section 5.1 and Section 5.3 as soon as reasonably practicable, to the Closing Date which would make any extent the fulfillment of the representations or warranties same is within the control of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.;
(b) Purchaser acknowledges and agrees that will forthwith carry out the sale terms of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by Interim Order and the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining Final Order to the Property. Purchaser acknowledges that if extent applicable to it elects and will use its commercially reasonable efforts to purchase assist Company in obtaining such orders and to carry out the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein intent or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default effect of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to and the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.Arrangement;
(c) Purchaser acknowledges will make all necessary filings and agrees that except as provided applications under Applicable Laws, including Applicable Canadian Securities Laws and U.S. Securities Laws, if applicable, required on the part of Purchaser in Section 4.3(d), nothing connection with the transactions contemplated herein and use its commercially reasonable action necessary to be in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property compliance with such Applicable Laws in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any respect of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.Arrangement;
(d) Purchaser shall make application to the TSX and NYSE and use its commercially reasonable efforts to obtain the approval of the TSX and NYSE for the listing on the Effective Date of the Purchaser Shares to be issued pursuant to the Arrangement;
(e) Purchaser shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement, which might directly or indirectly interfere with or affect the consummation of the Arrangement and the transactions contemplated hereby;
(f) subject to Section 10.4, and except for non-substantive communications with third parties and communications to legal and other advisors of Purchaser or communications in respect of Regulatory Approvals which are governed by Section 3.5, Purchaser will furnish promptly to Company and its legal counsel: (i) a copy of each notice, report, schedule or other document delivered, filed or received by Purchaser in connection with the Arrangement from any Governmental Authority; (ii) any filings made by Purchaser or its Representatives under Applicable Laws in connection with the Arrangement; and (iii) any documents related to dealings with Governmental Authorities in connection with the transactions contemplated herein;
(g) Purchaser will secure all consents of third parties that are required to permit the inclusion of any reference to their names in, or in relation to, any Purchaser Information included in the Information Circular, including by reason of their names being included in a document incorporated by reference in the Information Circular, or otherwise, and will provide copies of such consents to Company as soon as reasonably practicable;
(h) Purchaser shall promptly advise Company in writing of:
(i) to the extent permitted by Applicable Laws, any notice or other communication from any Governmental Authority in connection with this Agreement (and Purchaser shall contemporaneously provide a copy of any such written notice or communication to Company), other than in respect of Regulatory Approvals which are governed by Section 3.5;
(ii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement (and Purchaser shall contemporaneously provide a copy of any such written notice or communication to Company); and
(iii) any circumstance or development that, to the knowledge of Purchaser, would have a Material Adverse Effect on Purchaser or which might reasonably be expected to materially impede, interfere with or delay the Arrangement or prevent the completion of the Arrangement;
(i) Purchaser shall use its commercially reasonable efforts to obtain and maintain all material third party approvals (excluding Regulatory Approvals) under Purchaser Material Contracts required in connection with the transactions contemplated by this Agreement and provide the same to Company on or prior to the Effective Date, without committing Company to pay any consideration prior to the Effective Date or incur any liability or obligation prior to the Effective Date without the prior written consent of Company, except where the failure to provide or obtain such third party approval would not, individually or in the aggregate, have a Material Adverse Effect on Purchaser or prevent the completion of the transactions contemplated in this Agreement;
(j) Purchaser shall provide Company with at least two Business Days' advance notice of any proposed communications to be made prior to the Effective Date (including those to be communicated at any in-person or "town hall" type meetings, and via email correspondence) to Continuing Employees and agrees that it will to act reasonably in considering any comments provided by Company in respect of such communications.
(k) except as set forth the Purchaser Disclosure Letter, as required by Public-Health Measures or in respect of actions taken to address emergencies involving the potential loss or damage to property or personal safety or mandatory regulatory requirements, the business of Purchaser shall be conducted only in, and Purchaser shall not attempt take any action except in, the usual and ordinary course of business consistent with past practices and in accordance with good business practices, and Purchaser shall use all commercially reasonable efforts to contact maintain and preserve its business, assets, properties, goodwill and employees and business relationships with suppliers, distributors, customers, joint venture partners and others having business relationships with it;
(l) Purchaser shall not, directly or indirectly do, or permit to occur, any of the tenants following:
(i) amend its constating documents;
(ii) declare, set aside or pay any cash or non-cash dividend or make any other cash or non-cash payment or distribution in respect of its outstanding securities;
(iii) amend the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact terms of any of the tenants so long as it shall first notify Seller and give Seller Purchaser Shares without the opportunity to review any prior written communication with consent of Company;
(iv) split, combine or reclassify any of the tenants Purchaser Shares;
(v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation, reorganization or arrangement or similar action of Purchaser;
(vi) reduce the stated capital of any shares of Purchaser; or
(vii) enter into or modify any Contract, commitment or arrangement with respect to be present at any personal meeting with of the tenants, as applicableforegoing.
Appears in 1 contract
Covenants of Purchaser. Except as expressly provided in this Agreement, during the period from the date of this Agreement to the Effective Time, Purchaser shall use commercially reasonably efforts to, and shall cause the Bank and their Subsidiaries to use commercially reasonable efforts to, (i) maintain and preserve intact its business organization, properties, leases, employees and advantageous business relationships and retain the services of its officers and key employees, (ii) take no action which would adversely affect or delay the ability of Shore, Purchaser or the Bank to perform it covenants and agreements on a timely basis under this Agreement, and (iii) take no action which would adversely affect or delay the ability of Shore, Purchaser or the Bank to obtain any necessary approvals, consents or waivers of any Governmental Entity or third party required for the transactions contemplated hereby or which would reasonably be expected to result in any such approvals, consents or waivers containing any material condition or restriction. Without limiting the generality of the foregoing, and except as set forth in Section 5.2 of the Purchaser Disclosure Schedule or as otherwise specifically provided by this Agreement or consented to in writing by Shore (such consent not to be unreasonably withheld), Purchaser shall not, and shall not permit the Bank nor any of their Subsidiaries to:
(a) Purchaser shall notify Seller promptly if Purchaser becomes aware take any action that is intended or may reasonably be expected to result in any of any transactions the conditions to the Merger set forth in Article VII of this Agreement not being satisfied or occurrence not being satisfied prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at or prior to Closing, shall not survive Closing.Cut-Off Date;
(b) Purchaser acknowledges and agrees that the sale change its methods of the Property is made on an "AS ISaccounting in effect at December 31, WHERE-IS WITH ALL FAULTS" basis and2018, except in accordance with changes in GAAP or regulatory accounting principles as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made concurred with by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own Purchaser’s independent investigations, the investigations of its Permittees and the representations and warranties of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3.auditors;
(c) amend its certificate of incorporation, by-laws or similar governing documents other than (i) to enable Purchaser acknowledges and agrees the Bank to comply with the provisions of this Agreement, (ii) to establish one or more series of Purchaser Preferred Stock or (iii) to adopt provisions or authorize actions that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by do not materially and adversely affect the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any holders of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.Shore Common Stock; or
(d) Purchaser agrees that it will not attempt agree to contact do any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicableforegoing.
Appears in 1 contract
Covenants of Purchaser. Purchaser covenants and agrees that, from the date of this Agreement until the Effective Date or termination of this Agreement, except with the prior written consent of Crew, and except as otherwise expressly permitted or specifically contemplated by this Agreement (including the Plan of Arrangement) or required by Applicable Laws:
(a) Purchaser will use its reasonable commercial efforts to satisfy or cause the satisfaction of the conditions set forth in Section 5.1 and Section 5.3 as soon as reasonably practicable, to the extent the fulfillment of the same is within the control of Purchaser;
(b) Purchaser will forthwith carry out the terms of the Interim Order and the Final Order to the extent applicable to it and will use its reasonable commercial efforts to assist Crew in obtaining such orders and to carry out the intent or effect of this Agreement and the Arrangement;
(c) Purchaser will make all necessary filings and applications under Applicable Laws required on the part of Purchaser in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Applicable Laws;
(d) Purchaser shall notify Seller promptly if not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement, which might directly or indirectly interfere with or affect the consummation of the Arrangement in accordance with the terms and conditions herein;
(e) Purchaser becomes aware shall indemnify and save harmless Crew and its directors, officers, employees, advisors and agents from and against any and all liabilities, claims, demands, losses, costs, damages and expenses (excluding any loss of profits or consequential damages) to which Crew and its directors, officers, employees, advisors or agents may be subject or which Crew and its directors, officers, employees, advisors or agents may suffer, whether under the provisions of any statute or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of:
(i) any Misrepresentation or alleged Misrepresentation contained solely in the Purchaser Information included in the Information Circular;
(ii) any order made or any inquiry, investigation or proceeding by any securities commission or other competent authority based upon any untrue statement or omission or alleged untrue statement or omission of a Material Fact or any Misrepresentation or any alleged Misrepresentation in any material filed by or on behalf of Purchaser in compliance or intended compliance with Applicable Laws; and
(iii) Purchaser not complying with any requirement of Applicable Laws in connection with the transactions or occurrence prior contemplated in this Agreement; except that Purchaser shall not be liable in any such case to the Closing Date which would make extent that any such liabilities, claims, demands, losses, costs, damages and expenses arise out of or are based upon any Misrepresentation or alleged Misrepresentation based on the Crew Information, the negligence of Crew or the non-compliance by Crew with any requirement of Applicable Laws in connection with the transactions contemplated in this Agreement;
(f) except as permitted by this Agreement or the Arrangement, Purchaser shall not, directly or indirectly do, or permit to occur, any of the representations following:
(i) amend its constating documents;
(ii) [Redacted - commercially sensitive restriction on distributions]
(iii) adopt a plan of liquidation or warranties resolutions providing for the liquidation, dissolution or consolidation of Seller contained Purchaser; or
(iv) enter into or modify any Contract, commitment or arrangement with respect to any of the foregoing;
(g) subject to Section 10.4, and except for non-substantive communications with third parties and communications to legal and other advisors of Purchaser, Purchaser will furnish promptly to Crew: (i) a copy of each notice, report, schedule or other document delivered, filed or received by Purchaser in connection with the Arrangement from any Governmental Authority; (ii) any filings under Applicable Laws in connection with the Arrangement; and (iii) any documents related to dealings with Governmental Authorities in connection with the transactions contemplated herein;
(h) Purchaser will make all necessary filings and applications under Applicable Laws, including Applicable Canadian Securities Laws and U.S. Securities Laws, required to be made on the part of Purchaser in connection with the transactions contemplated herein;
(i) Purchaser will use its reasonable commercial efforts to obtain conditional approval for the listing of the Purchaser Shares to be issued pursuant to the Arrangement on the TSX;
(j) except as contemplated herein, Purchaser shall not take any action that would render, or may reasonably be expected to render, any representation or warranty made by Purchaser in this Agreement untrue in any material respect. ;
(k) Purchaser shall promptly notify Crew in writing of any Material Adverse Change with respect to Purchaser or of any change in any representation or warranty provided by Purchaser in this Agreement which change is or may be of such a nature as to render any representation or warranty misleading or untrue in any material respect and Purchaser shall in good faith discuss with Crew any such change in circumstances (actual, anticipated, contemplated, or to the knowledge of Purchaser's failure , threatened) which is of such a nature that there may be a reasonable question as to so notify Seller whether notice need be given to Crew pursuant to this provision;
(l) Purchaser shall constitute a waiver promptly advise Crew in writing of any material breach by Purchaser of any liability of Seller covenant, obligation or agreement contained in this Agreement;
(m) Purchaser shall use its reasonable commercial efforts to Purchaser or its designee arising from obtain and maintain the untruth of any such representations or warranties of Seller known Third Party Approvals applicable to Purchaser prior it and provide the same to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser to be untrue at Crew on or prior to Closing, shall not survive Closing.the Effective Date; and
(bn) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth in Section 7.2, without representations or warranties of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining shall take all commercially reasonable actions to give effect to the Property. Purchaser acknowledges that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees transactions contemplated by this Agreement and the representations and warranties Plan of the Sellers expressly made herein or in any other document executed and delivered by Seller to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enacted, and which relate to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Arrangement.
(c) Purchaser acknowledges and agrees that except as provided in Section 4.3(d), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants of Purchaser. (a) Purchaser shall notify use all commercially reasonably efforts to take, or cause to be taken, all actions necessary in order to promptly (i) consummate and make effective the transactions contemplated by this Agreement and (ii) satisfy (and assist Seller promptly if in satisfying) all of the conditions to Closing. Purchaser becomes aware shall negotiate with Seller in good faith to agree on the contents, terms and conditions of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in this Agreement untrue in any material respect. Purchaser's failure to so notify Seller shall constitute a waiver by Purchaser of any liability of Seller to Purchaser or its designee arising from the untruth of any such representations or warranties of Seller known to Purchaser prior to Closing, it being agreed by the parties hereto that such representations and warranties known by Purchaser documents to be untrue delivered, or agreements to be entered into, at or prior to Closing, shall not survive the Closing.
(b) Purchaser acknowledges and agrees that the sale of the Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and, except as specifically set forth shall promptly inform Seller in Section 7.2, without representations or warranties writing of any kind or nature, express, implied or otherwise, including, but not limited to, any representation or warranty made by the Brokers or any representation or warranty concerning zoning, financial, environmental, or physical condition of the Property, or any income, expenses, charges, liens, encumbrances, rights, claims on or affecting or pertaining to the Property. Purchaser acknowledges development that if it elects to purchase the Property, it will be doing so predicated upon its own independent investigations, the investigations of its Permittees and would cause the representations and warranties contained in Article III to be inaccurate or incomplete in any material respect if given on the date of such development. At least five business days prior to the Closing, Purchaser shall deliver to Seller a revised Schedule (the "Revised Schedule"), which shall amend and revise the Schedule to reflect events and developments that have occurred from the date hereof to the delivery date and would have been appropriate subject matter for the Schedule. Notwithstanding anything herein to the contrary, to the extent that the Revised Schedule is used to correct any misstatements or omissions in the Schedule, Purchaser shall continue to be liable, to the extent provided by Article VIII, for any Losses resulting from any action, or failure to take any action, by any Seller Indemnified Party prior to the delivery of the Sellers expressly made herein Revised Schedule; provided, that, if Seller elects to proceed with the Closing regardless of such misstatements or in any other document executed and delivered by Seller omissions, it shall notify Purchaser of such Losses prior to Purchaser at Closing as described in Section 4.5(b). Purchaser hereby waives any and all claims which may currently exist or which may arise in the future, by contract, common law or statute currently in effect, as amended or subsequently enactedClosing, and which relate any dispute as to Purchaser's Indemnity Obligations with respect to such Losses shall be resolved prior to the Property or environmental conditions on, under, or near the Property and are not the direct result of a default of this Agreement by Seller, in which latter event Purchaser's remedies shall be limited for any such default prior to Closing to the provisions of Section 8.1(b) and for any default discovered after Closing to the provisions of Section 10.3Closing.
(c) Purchaser acknowledges and agrees that except as provided shall use commercially reasonable efforts to keep Seller apprised of the status of Purchaser's efforts to obtain the financing referred to in Section 4.3(d5.02(i), nothing in this Agreement shall be deemed to preclude or prohibit Seller from operating, managing, leasing (including terminating any Lease for breach by the tenant) and repairing the Property in the same manner as the same was operated, managed, leased, and repaired prior to execution hereof. Seller will not voluntarily terminate any of the Leases prior to their expiration date without Purchaser's written approval which will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact any of the tenants of the Property (whether by telephone, correspondence, or in person) until such time, if ever, as the Inspection Period shall have expired and Purchaser has not given Seller a Notice to Cancel. Thereafter, Purchaser may contact any of the tenants so long as it shall first notify Seller and give Seller the opportunity to review any written communication with any of the tenants or to be present at any personal meeting with the tenants, as applicable.
Appears in 1 contract
Samples: Stock Purchase Agreement (Applied Graphics Technologies Inc)
