Investigation by Buyer. Buyer has undertaken an independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer: (a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties; (b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein; (c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and (d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules).
Appears in 2 contracts
Samples: Asset Purchase Agreement (SOUTHERN Co GAS), Asset Purchase Agreement (South Jersey Industries Inc)
Investigation by Buyer. Buyer has undertaken an independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives until the date which is thirty (including any forecasts or projected information), except that 30) days after the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V date of this Agreement (the "Diligence Period") to complete its due diligence investigation ("Review") of Seller, the Restaurants and the Assets. Upon Buyer's request, Buyer shall be given reasonable access to Seller's management personnel associated with the Restaurants, which access shall be coordinated through and arranged by Seller. Buyer shall conduct its Review at such times and in such a manner as qualified by the Seller Disclosure Schedules), but always subject to minimize any disruption to the limitations operation of the Restaurants. Buyer shall identify any Assets which are not in good serviceable or working condition, ordinary wear and restrictions contained herein;
(c) acknowledges thattear excepted, except and Seller shall repair or replace such Assets prior to the Closing Date. Seller shall furnish to Buyer any additional financial and operating data and other information as expressly set forth in this AgreementBuyer and its counsel, there are no representations or warranties of any kindaccountants, express or implied, and other authorized representatives shall from time to time reasonably request with respect to the Businesssame. Until the conclusion of the Diligence Period, Buyer shall have the right, in its sole discretion, to terminate this Agreement if the Review reveals any information that would have a material adverse effect on Buyer's ability to consummate the Acquisition, Seller, the Purchased Assets Restaurants or the Assumed Obligations; and
(d) none Assets which cannot be reasonably cured by the Closing. For purposes of Sellerthis Agreement, its Affiliates or Seller’s Representatives "material adverse effect" shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to be defined as an effect that prevents Buyer, its Affiliates or their respective Representativesthrough no fault of Buyer, except as and only from having the ability to operate the Restaurants in a profitable manner consistent with Seller's operations thereof prior to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Eaco Corp), Asset Purchase Agreement (Eaco Corp)
Investigation by Buyer. Seller shall, and shall cause the Company to, afford the officers, employees and authorized representatives of Buyer has undertaken an (including independent review public accountants and analysis attorneys) reasonable access during normal business hours, upon reasonable advance notice, to the offices, properties, employees, Contracts and business and financial records (including computer files, retrieval programs and similar documentation) of the businessCompany and its Affiliates to the extent Buyer shall reasonably deem necessary and shall furnish to Buyer or its authorized representatives such additional information concerning the Equity Interests, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed the assets, properties and operations of the Company and its Affiliates as shall be reasonably requested, including all due diligence that it has deemed such information as shall be reasonably necessary to perform concerning enable Buyer or its representatives to verify the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), accuracy of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations to verify that the covenants of Seller contained in this Agreement have been complied with and to determine whether the conditions set forth in ARTICLE IX have been satisfied; provided, however, that: (i) Seller and the Company shall not be required to violate any Requirements of Laws or warranties Orders or obligation of confidentiality to which Seller or the Company is subject or to waive any kindattorney-client privilege which any of them may possess 30 in discharging their obligations pursuant to this Section 7.1; (ii) Seller and the Company shall not be required to furnish or otherwise make available to Buyer nonpublic personal information of borrowers; and (iii) Buyer shall not, express without the prior written consent of Seller, contact or implied, communicate with any correspondent lender of the Company with respect to or in connection with the transactions contemplated by this Agreement. Buyer agrees that such investigation shall be conducted in such a manner as not to interfere unreasonably with the operations of the Business. No investigation made by Buyer or its representatives hereunder shall affect the representations and warranties of Seller hereunder. Prior to the Closing, Buyer shall use its commercially reasonable efforts to notify Seller if, to the Purchased Assets or the Assumed Obligations; and
(d) none Knowledge of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, Seller is in breach of its Affiliates or their respective Representatives, representations and warranties hereunder; provided that failure to give such notice shall not relieve Seller of its indemnification obligations hereunder except as (and only only) to the extent expressly set forth in Article V of this Agreement (as qualified that Seller shall have been materially prejudiced by the Seller Disclosure Schedules)such failure.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement
Investigation by Buyer. Prior to the Closing Date, Buyer has undertaken an independent review and analysis its lenders and advisors may make or cause to be made such investigation of the business, operationsproperties, assets, liabilities, results of operations, financial condition assets and prospects liabilities of the Business Company and has performed its financial and legal conditions as they deem necessary or advisable to familiarize themselves therewith, provided that such investigation shall not unreasonably interfere with the normal operations of the Company. Such investigation may include, without limitation, an examination and valuation of inventory by Buyer's accountants and an appraisal of all due diligence that it has deemed necessary assets of the Company. Prior to perform concerning the BusinessClosing Date, upon reasonable prior notice, the Purchased Assets, Company and the Assumed Obligations in connection with its decision Selling Shareholders agree to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that permit Buyer and Buyer’s Representatives its authorized representatives (including its lenders and advisors), or cause them to be permitted, to have been provided full access to the personnelpremises, properties, premises books and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliatesrecords, officers, directorsemployees, employees or representativesand independent accountants (including the independent accountant's work-papers) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future businessCompany at reasonable hours, operations, revenues or profits and prior to the Closing Date the officers of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the Company shall furnish Buyer and its lenders and advisors with such financial and operating data and other information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Businessbusiness, properties and assets of the Purchased Assets Company as they shall from time to time reasonably request. Prior to the Closing Date, or in the event this Agreement is terminated, Buyer shall not use any information relating to the Company obtained by it from the Company or the Assumed Obligations; and
(d) none Selling Shareholders pursuant to this Section 3.3, which is not otherwise publicly available, for any purpose unrelated to the consummation of Sellerthe transactions contemplated hereby, its Affiliates or Seller’s Representatives shall have and prior to such Closing Date, Buyer will not disclose any liability or responsibility based upon such information to any person, unless and until such time as such information provided or made is otherwise publicly available or statements made or omissions therefrom as Buyer is advised by counsel that such information is required by law to Buyerbe disclosed. In the event this Agreement is terminated, its Affiliates or their respective Representatives, except as and only Buyer agrees to keep confidential all information it has obtained concerning the extent expressly set forth in Article V Company under the terms of this Agreement (as qualified for a 30-month period and to return promptly, if so requested by the Seller Disclosure Schedules).Company, every document furnished to Buyer by the Company and the
Appears in 1 contract
Investigation by Buyer. Buyer has undertaken an independent review (a) Upon reasonable advance notice, Sellers and analysis Holding Companies shall use their respective best efforts to cause Target and Company and their respective directors, officers, employees, counsel, financial advisors and other representatives to allow Buyer's Representatives, during regular business hours, to make such investigation of the business, operationsproperties, assetsbooks, liabilitiescontracts, personnel and records (including access to suppliers, supply reports and customer online transaction reports) of Target and Company, and to conduct such due diligence investigation of Target and Company as Buyer deems necessary or advisable. Sellers and Holding Companies also agree to use their respective best efforts to cause Target and Company and their respective directors, officers, employees and representatives to, furnish promptly to Buyer all information concerning their respective businesses, properties, results of operations, financial condition condition, and prospects as Buyer may from time to time reasonably request. Buyer covenants that such investigation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller Target or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;Company.
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any Any information provided or made available, or statements made, to Buyer or Buyer’s its Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified shall be held by the Seller Disclosure Schedules)Buyer and its Representatives in accordance with, but always and shall be subject to the limitations terms of, the Letter of Intent, dated February 22, 2000, as extended by a subsequent Letter of Intent, dated February 29, 2000, by and restrictions contained between Target and Buyer (such letters, the "Letter of Intent"), which terms are hereby incorporated in this Agreement by reference as though fully set forth herein;; provided, however, that all the references therein to Target shall be deemed to include Sellers and Holding Companies; and provided, further, that the terms thereof shall terminate on the Closing Date.
(c) acknowledges that, except as expressly set forth No investigation by Buyer or its Representatives hereunder shall affect or limit in this Agreement, there are no any way the representations and warranties in Articles IV and V or warranties of any kind, express or implied, with respect the conditions to the Business, the Purchased Assets or the Assumed Obligations; andobligations of each of Sellers and Holding Companies.
(d) none Buyer agrees to hold all of Sellerthe accounts, its Affiliates books and records of Company existing and transferred to it on the Closing Date and not to destroy or Seller’s Representatives shall have dispose of any liability such books or responsibility based upon any information provided records for a period of six (6) years from the Closing Date or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except such longer time as and only to the extent expressly set forth in Article V of this Agreement (as qualified may be required by the Seller Disclosure Schedules)law.
Appears in 1 contract
Samples: Purchase Agreement (El Sitio Inc)
Investigation by Buyer. Prior to the Closing Date, Buyer has undertaken an independent review and analysis may make or ---------------------- cause to be made such investigation of the business, operationsproperties, assets, liabilities, results of operations, financial condition assets and prospects liabilities of the Business Company and has performed its financial and legal conditions as Buyer deems necessary or advisable to familiarize itself therewith, provided that such -------- investigation shall not unreasonably interfere with the normal operations of the Company. Such investigation may include, without limitation, an examination and valuation of inventory by Buyer's accountants and an appraisal of all due diligence that it has deemed necessary assets of the Company. Prior to perform concerning the BusinessClosing Date, upon reasonable prior notice, the Purchased Assets, Company and the Assumed Obligations in connection with its decision Selling Shareholders agree to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that permit Buyer and Buyer’s Representatives its authorized representatives, or cause them to be permitted, to have been provided full access to the personnelpremises, properties, premises books and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliatesrecords, officers, directorsemployees, employees or representativesand independent accountants (including the independent accountant's work-papers) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future businessCompany at reasonable hours, operations, revenues or profits and prior to the Closing Date the officers of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the Company shall furnish Buyer with such financial and operating data and other information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Businessbusiness, properties and assets of the Purchased Assets Company as Buyer shall from time to time reasonably request. No investigation by Buyer heretofore or hereafter made shall affect the representations and warranties of the Company contained herein. Prior to the Closing Date, or in the event this Agreement is terminated, Buyer shall not use any information relating to the Company obtained by it from the Company or the Assumed Obligations; and
(d) none Selling Shareholders pursuant to this Section 3.3, which is not otherwise publicly available, for any purpose unrelated to the consummation of Sellerthe transactions contemplated hereby, its Affiliates or Seller’s Representatives shall have and prior to such Closing Date, Buyer will not disclose any liability or responsibility based upon such information to any person, unless and until such time as such information provided or made is otherwise publicly available or statements made or omissions therefrom as Buyer is advised by counsel that such information is required by law to Buyerbe disclosed. In the event this Agreement is terminated, its Affiliates or their respective Representatives, except as and only Buyer agrees to keep confidential all information it has obtained concerning the extent expressly set forth in Article V Company under the terms of this Agreement (as qualified for a five-year period and to return promptly, if so requested by the Seller Disclosure Schedules)Company, every document furnished to Buyer by the Company and the Selling Shareholders, in connection with the transactions contemplated hereby, and any copies thereof Buyer may have made, and to use its best efforts to cause its representatives to whom such documents were furnished promptly to return such documents, and any copies thereof any of them may have made.
Appears in 1 contract
Samples: Stock Subscription and Purchase Agreement (Kilovac International Inc)
Investigation by Buyer. Buyer has undertaken an independent review and analysis During the period beginning on the date of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and ending on the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Closing Date, Buyer and Buyer’s Representatives have been provided each Representative of Buyer may continue to conduct a due diligence review of the Corporation and the Business. In connection with such due diligence review, Buyer and each Representative of Buyer shall be granted full access to all Current Real Property upon reasonable prior notice and during normal business hours, and Seller shall, upon request by Buyer, arrange for Buyer to be granted full access to any third party warehouses or other facilities where property of the personnel, properties, premises and records of Seller for such purposeCorporation is located. In entering into this Agreementconnection with such due diligence review, Buyer has relied solely upon its own investigation and analysisSeller agrees, and shall cause each Representative of Seller, upon reasonable prior notice, to (i) cooperate with Buyer and each Representative of Buyer:
, (aii) acknowledges that none provide all information, and all documents and other data relating to such information, reasonably requested by Buyer or any Representative of Buyer (including, without limitation, (A) the work papers of the Corporation's Accountants, (B) the Tax Returns of the Corporation or any Subsidiary (or Seller or any Affiliate of Seller or the Corporation to the extent that the Corporation is jointly and severally liable for Taxes with respect to such Tax Return), and (C) all responses to auditor's inquiry letters for the past 5 years or related to the preparation of the Financial Statements) and (iii) permit Buyer and each Representative of Buyer to inspect any assets of the Corporation. Buyer shall not be given access to information regarding Seller's negotiations to sell the Business. Buyer shall disclose to Seller in writing any information gained in its Affiliates or due diligence review which might reasonably be adjudged to result in a breach of any of Seller’s Representatives makes or has made any representation or warranty's representations, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except warranties and covenants. Except as set forth in Section 5.46.2, the future results Buyer and each Representative of operations (or any component thereof)Buyer shall be granted full access to all Current Real Property upon reasonable prior notice and during normal business hours. In connection with such due diligence review, cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)agrees, and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none cause each Representative of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom reasonable prior notice, to (i) cooperate with Buyer and each Representative of Buyer, its Affiliates (ii) provide all information, and all documents and other data relating to such information, reasonably requested by Buyer or their respective Representativesany Representative of Buyer (including, except as without limitation, the work papers of the Corporation's Accountants and only all responses to auditor's inquiry letters for the past 5 years or related to the extent expressly set forth in Article V preparation of this Agreement the Financial Statements) and (as qualified by iii) permit Buyer and each Representative of Buyer to inspect any assets of the Seller Disclosure Schedules)Corporation.
Appears in 1 contract
Samples: Purchase Agreement (Genesee Corp)
Investigation by Buyer. Buyer has undertaken an independent review has, prior to the Closing Date and analysis subject to this Section 3.1, through its representatives (including its counsel, accountants and consultants) made such investigations of the businessproperties, operationsthe intellectual property rights, assets, liabilities, results offices and operations of operations, the Company and such audit of the financial condition and prospects of the Business and has performed all due diligence that Company as it has deemed deems necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations or advisable in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby hereby, including, without limitation, any investigation enabling it to familiarize itself with such properties, offices, operations and thereby financial condition; such investigation shall not, however, affect the Company’s or the Sellers’ representations, warranties and acknowledges that agreements hereunder. The Company and the Sellers have permitted Buyer and Buyer’s Representatives have been provided access its authorized representatives, from and after the date hereof, complete access, following reasonable prior notice, to the personnelall books, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysisrecords, and Buyer:
(a) acknowledges that none properties of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warrantythe Company, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating clinical trial data and regulatory submissions, to (a) projectionsall Returns of the Company, estimates or budgets and Buyer has the right to make copies thereof and excerpts therefrom. The Company and Sellers have cooperated fully with Buyer in connection with its due diligence investigation. Buyer has been furnished inter alia with the information that is set out and listed in the due diligence list set out in Schedule 3.1, which information shall be copied and delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or at Closing. The Company has furnished Buyer with such financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the and operating data and other information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the BusinessCompany as Buyer has from time to time reasonably requested. Buyer will treat, and will cause its employees and representatives to treat, all information obtained from the Purchased Assets or Company in the Assumed Obligations; and
(d) none course of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representativesthe due diligence review in strict confidence, except as and only to the extent expressly set forth any such information is required to be disclosed to governmental authorities or pursuant to legal process or where such information is already in Article V the public domain or becomes in the public domain through no fault of this Agreement (as qualified Buyer. In the event the Acquisition is not concluded, Buyer agrees to return all written materials theretofore furnished by the Seller Disclosure Schedules)Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (Genetronics Biomedical Corp)
Investigation by Buyer. Seller shall, and shall cause the Company to, afford the officers, employees and authorized representatives of Buyer has undertaken an (including independent review public accountants and analysis attorneys) reasonable access during normal business hours, upon reasonable advance notice, to the offices, properties, employees, Contracts and business and financial records (including computer files, retrieval programs and similar documentation) of the businessCompany and its Affiliates to the extent Buyer shall reasonably deem necessary and shall furnish to Buyer or its authorized representatives such additional information concerning the Equity Interests, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed the assets, properties and operations of the Company and its Affiliates as shall be reasonably requested, including all due diligence that it has deemed such information as shall be reasonably necessary to perform concerning enable Buyer or its representatives to verify the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), accuracy of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations to verify that the covenants of Seller contained in this Agreement have been complied with and to determine whether the conditions set forth in ARTICLE IX have been satisfied; provided, however, that: (i) Seller and the Company shall not be required to violate any Requirements of Laws or warranties Orders or obligation of confidentiality to which Seller or the Company is subject or to waive any kindattorney-client privilege which any of them may possess in discharging their obligations pursuant to this Section 7.1; (ii) Seller and the Company shall not be required to furnish or otherwise make available to Buyer nonpublic personal information of borrowers; and (iii) Buyer shall not, express without the prior written consent of Seller, contact or implied, communicate with any correspondent lender of the Company with respect to or in connection with the transactions contemplated by this Agreement. Buyer agrees that such investigation shall be conducted in such a manner as not to interfere unreasonably with the operations of the Business. No investigation made by Buyer or its representatives hereunder shall affect the representations and warranties of Seller hereunder. Prior to the Closing, Buyer shall use its commercially reasonable efforts to notify Seller if, to the Purchased Assets or the Assumed Obligations; and
(d) none Knowledge of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, Seller is in breach of its Affiliates or their respective Representatives, representations and warranties hereunder; provided that failure to give such notice shall not relieve Seller of its indemnification obligations hereunder except as (and only only) to the extent expressly set forth in Article V of this Agreement (as qualified that Seller shall have been materially prejudiced by the Seller Disclosure Schedules)such failure.
Appears in 1 contract
Samples: Equity Purchase Agreement (Impac Mortgage Holdings Inc)
Investigation by Buyer. Buyer has undertaken an independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased AssetsSeller shall, and shall cause the Assumed Obligations in connection with its decision to enter into this Agreement Company and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited Subsidiary to, any relating to (a) projectionsafford the officers, estimates or budgets delivered or made available to employees and authorized representatives of Buyer (or any of its Affiliatesincluding independent public accountants, officersattorneys and environmental consultants) access upon reasonable notice, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agreesduring normal business hours, to the fullest extent permitted by applicable Lawemployees, that none of Seller or any of its Affiliates or any vendors, service providers and properties of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any , the Company and the Subsidiary and all the books, records, contracts, documents and other information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect each case relating to the Business, the Purchased Assets Company, the Subsidiary or the Assumed Obligationsemployees of the Company and the Subsidiary, and shall furnish to Buyer and its authorized agents and representatives such additional information and access relating to the Business, the Company, the Subsidiary and the employees of the Company or the Subsidiary as Buyer may reasonably request. Notwithstanding the foregoing, Seller shall not be required to provide any information that, based on the advice of counsel, it may not provide to Buyer by reason of applicable Requirements of Laws, or that it is required to keep confidential by reason of contract or agreement with third parties. Seller shall cause its and the Company’s and the Subsidiary’s personnel to provide reasonable assistance to Buyer in Buyer’s investigation of matters relating to the Business, the Company, the Subsidiary and the employees of the Company and the Subsidiary; and
provided such assistance does not unreasonably interfere with such personnel’s job duties. Further, Buyer and its authorized agents and representatives (dincluding its environmental consultants) none of Seller, its Affiliates or shall be given access to the Owned Real Property and Seller’s Representatives and the Company’s data processing facilities for all reasonable purposes, including the undertaking of environmental assessments; provided, however, that Buyer’s investigation shall have any liability be conducted in a manner which does not unreasonably interfere with the Company’s normal operations, customers, and employee relations and no intrusive sampling or responsibility based upon any information provided other intrusive environmental investigations shall be conducted without Seller’s prior consent, which shall not be unreasonably delayed or conditioned. No investigation made available by Buyer or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as representatives hereunder shall affect the representations and only to the extent expressly set forth in Article V warranties of this Agreement (as qualified by the Seller Disclosure Schedules)hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Citizens Republic Bancorp, Inc.)
Investigation by Buyer. Buyer has undertaken an independent review and analysis may, prior to the end of the businessPhase-Out Period (as defined in the Phase-Out Addendum), operationsthrough its own representatives (including its counsel, assets, liabilities, results of operations, financial condition accountants and prospects consultants) make such reasonable inquiries and document reviews with respect to the Option Assets and general operations of the Retail Energy Business and has performed all due diligence that such review of the financial records of the Retail Energy Business as it has deemed deems necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations or advisable in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby to familiarize itself with such Option Assets and thereby general operations and acknowledges that financial records; such activities shall not, however, affect Sellers' representations, warranties and agreements hereunder. Sellers shall permit Buyer and Buyer’s Representatives have been provided its authorized representatives to have, after the date hereof, reasonable access to the personnelofficers, properties, employees and premises of each Seller and to all books and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation the Retail Energy Business or related to the Acquired Assets and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Option Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to and Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever the right to make copies thereof and excerpts therefrom. Sellers shall furnish Buyer on any basis based upon any with such financial and operating data and other information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller the Acquired Assets, Option Assets and the Retail Energy Business as Buyer may from time to time reasonably request. Sellers agree to permit Buyer and its authorized representatives to visit suppliers, customers and others having business relations with the extent Seller has liability for indemnification pursuant to Article IX for Retail Energy Business. Sellers acknowledge that the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly rights set forth in this Agreement, there Section 6.1 are essential to Buyer as a means of evaluating the Acquired Assets and Option Assets and Sellers agree that in no representations event will Sellers seek to recover costs or warranties damages of any kind, express kind incurred as a result of the exercise by Buyer of such rights and hereby waives any and all rights it might have to recover any such costs or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)damages.
Appears in 1 contract
Samples: Asset Purchase Agreement (Commerce Energy Group Inc)
Investigation by Buyer. Buyer has undertaken an independent review and analysis (a) Between the date of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements Closing Date, each Seller shall, and shall cause Transferred Company to consummate the transactions contemplated hereby and thereby and acknowledges that allow Buyer and Buyer’s Representatives have been provided access its authorized agents and representatives reasonable access, upon reasonable notice and during normal business hours, to all Contracts and information of or relating to the personnelassets, propertiesLiabilities, premises operations, personnel and records other aspects of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, the business of Transferred Company in connection with the Buyer's review of matters related to the purchase of the Shares and Buyer:
(a) acknowledges 's examination of the condition of Transferred Company, in each case to verify the representations and warranties of Sellers hereunder including, without limiting the foregoing verification, by drilling of aggregate reserves on the real property owned by the Transferred Company; provided, however, that none of Seller any information obtained from Sellers or any of its Affiliates or any in connection with such investigation and examination shall be deemed to be subject to the Nondisclosure and Confidentiality Agreement referred to in Section 1.1 (the "Confidentiality Agreement"). Each Seller shall use his reasonable efforts to cause its employees and the employees of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating Transferred Company and its agents and representatives to (a) projections, estimates or budgets delivered or made available provide reasonable assistance to Buyer (or any of in connection with its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations investigation and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;examination.
(b) agrees, In addition to the fullest extent permitted parties' respective obligations under the Confidentiality Agreement, which is hereby reaffirmed and adopted, and incorporated by applicable Lawreference herein, that none each party hereto shall, and shall cause its advisers and agents to, maintain the confidentiality of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever all confidential information furnished to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that it by the foregoing limitations other Parties and shall not apply with respect to Seller use such information for any purpose except in furtherance of the transactions contemplated by this Agreement. If this Agreement is terminated prior to the extent Seller has liability for indemnification pursuant to Article IX for Closing, each party shall promptly return or certify the breach destruction of all documents and copies thereof, and all work papers containing confidential information received from the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;other party.
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, Each such Seller and his Affiliates shall use their reasonable efforts to exercise their rights under confidentiality agreements entered into with Persons which were considering an acquisition proposal with respect to Transferred Company, if any, to preserve the Business, confidentiality of the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only relating to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)Transferred Company provided to such Persons and their Affiliates and Representatives.
Appears in 1 contract
Samples: Stock Purchase Agreement (Florida Rock Industries Inc)
Investigation by Buyer. Prior to the Closing Date, upon ---------------------- reasonable prior notice, Selling Shareholders agree to permit Buyer has undertaken an independent review Representatives and analysis of the businesstheir authorized representatives, operationsas specifically approved by Sellers' Representative in writing, assetsor cause them to be permitted, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided full access to the personnelpremises, properties, premises books and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliatesrecords, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)employees, and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives independent accountants (including any forecasts or projected information)the independent accountant's workpapers, except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations execution of a customary workpaper access letter) of the Company and restrictions contained herein;
(c) acknowledges thatLighting at reasonable hours, except as expressly set forth in this Agreement, there are no representations or warranties and prior to the Closing Date the officers of any kind, express or implied, the Company and Lighting shall furnish Buyer with such financial and operating data and other information with respect to the Businessbusiness, properties and assets of the Company and Lighting as Buyer shall from time to time reasonably request. No investigation by Buyer heretofore or hereafter made shall affect the representations and warranties of the Selling Shareholders contained herein. Prior to the Closing Date, Buyer shall not use any information relating to the Company and Lighting obtained by it from the Selling Shareholders, the Purchased Assets Company and Lighting pursuant to this Section 3.3, which is not otherwise publicly available, for any purpose unrelated to the consummation of the transactions contemplated hereby, and prior to the Closing Date or in the Assumed Obligations; and
(d) none of Sellerevent this Agreement is terminated, its Affiliates or Seller’s Representatives shall have Buyer will not disclose any liability or responsibility based upon such information to any person, unless and until such time as such information provided or made is otherwise publicly available or statements made or omissions therefrom as Buyer is advised by counsel that such information is required by law to Buyerbe disclosed. In the event this Agreement is terminated, its Affiliates or their respective Representatives, except as Buyer agrees to keep confidential all information it has obtained concerning the Company and only to Lighting under the extent expressly set forth in Article V terms of this Agreement (as qualified for a two- year period and to return promptly, if so requested by the Seller Disclosure Schedules)Selling Shareholders, every document furnished to Buyer by the Selling Shareholders, the Company and Lighting, in connection with the transactions contemplated hereby, and any copies thereof Buyer may have made, and to use its best efforts to cause its representatives to whom such documents were furnished promptly to return such documents, and any copies thereof any of them may have made.
Appears in 1 contract
Investigation by Buyer. Buyer has undertaken an independent review and analysis (a) From the date hereof until the earlier of the businessClosing Date and the termination of this Agreement in accordance with its terms: Buyer may, operationsthrough its representatives (including its counsel, assetsaccountants, liabilitieslenders, results and consultants), make such reasonable investigations of operationsthe properties, offices and operations of the Company and such audit of the financial condition and prospects of the Business and has performed all due diligence that Company as it has deemed reasonably deems necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations or advisable in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby hereby, including, without limitation, any investigations enabling it to familiarize itself with such properties, offices, operations and thereby financial condition; provided, however, that to extent the Buyer becomes aware of a fact or receives information through the course of its investigation that would result in the breach of a representation or warranty of the Company or the Sellers or cause the Company or the Sellers to be unable to fulfill a covenant hereunder and acknowledges that the Buyer does not promptly notify the Company and the Sellers of such fact or information, the Buyer shall not be entitled to any indemnification related thereto or to make a claim for any such breach or failure hereunder. The Company and the Sellers shall permit Buyer and Buyer’s Representatives have been provided access its authorized representatives, upon reasonable advance notice to the personnelCompany or the Sellers, properties, to have reasonable access during normal business hours to the premises and to all books and records and Tax Returns of Seller for such purposethe Company, and Buyer shall have the right to make copies thereof and excerpts therefrom with the prior consent of the Company. In entering into this Agreementconnection with such review, Buyer has relied solely upon and its own investigation representatives may contact and analysiscommunicate with key employees, suppliers, customers, lenders and Buyer:
(a) acknowledges that none of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), creditors of the Business; (b) future business, operations, revenues or profits Company with the prior consent of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of Company. The Company and the Purchased Assets; or (d) as Sellers shall timely furnish Buyer with such financial and operating data and other information with respect to the accuracy or completeness of any of the information provided or made available Company and its operations as Buyer may from time to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;time reasonably request.
(b) agreesWith the prior consent of the Company, representatives of Buyer shall be entitled to hold meetings and conferences during normal working hours with the Company's employees upon reasonable notice to the Company, to explain and answer questions about the fullest extent permitted conditions, policies and benefits of employment by applicable LawBuyer. Further, that none of Seller or any of its Affiliates or any of Seller’s Representatives the Company and the Sellers shall have any liability or responsibility whatsoever reasonably cooperate with Buyer in communicating to Buyer on any basis based upon the Company's employees any information provided or made available, or statements made, concerning employment by Buyer and shall encourage the Company's employees to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that remain in the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach employment of the specific representations and warranties set forth in Article V of this Agreement (as qualified by Company after the Seller Disclosure Schedules), but always subject Closing. The Sellers shall be entitled to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations have one or warranties of any kind, express or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)more representatives attend such meetings.
Appears in 1 contract
Investigation by Buyer. Buyer has undertaken an independent review From and analysis of after the business, operations, assets, liabilities, results of operations, financial condition and prospects of date hereof until the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
(a) acknowledges that none of Seller Closing Date or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives), except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives (including any forecasts or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V earlier termination of this Agreement (as qualified by the Seller Disclosure Schedules“Interim Period”), but always subject Seller Parent will provide Buyer and its Representatives with reasonable access, upon reasonable prior notice and during normal business hours, to all officers and employees of the Company and the Company Subsidiaries and their respective Properties, Projects and Sites (provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Sites) and the Books and Records relating to the limitations Company and restrictions contained herein;
(c) acknowledges thatthe Company Subsidiaries, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and but only to the extent expressly set forth that such access does not unreasonably interfere with the business and operations of the Company and the Company Subsidiaries; provided, however, that (a) Seller Parent shall have the right to (i) have a Representative present for any communication with employees or officers of the Company or any Company Subsidiary and (ii) impose reasonable restrictions and requirements for safety purposes and (b) Seller Parent shall not be required to provide access to any information that is (i) subject to attorney-client privilege to the extent doing so would cause such privilege to be waived, (ii) prohibited by Applicable Law or (iii) subject to contractual prohibitions against disclosure to the extent doing so would violate such prohibition (after Seller has used commercially reasonable efforts to obtain the consent of the other party to disclose such information and such consent has been denied). In addition, upon reasonable advance request from Buyer for purposes of a smooth and efficient transfer and integration of the business the Company and the Company Subsidiaries and other reasonable purposes, Seller Parent shall use its commercially reasonable efforts to arrange meetings (whether telephonic or in Article V person) with customers and suppliers of this Agreement the Company and the Company Subsidiaries, provided that (as qualified i) Buyer shall consult with the Company regarding the topics for discussion at such meetings and Seller Parent shall have the right to have Representatives present at any such meetings, (ii) Seller Parent may reasonably limit the number of individuals and the number of meetings and (iii) Buyer shall coordinate all such meetings with one or more Persons designated by the Company or Seller Disclosure Schedules)Parent. All such access and information obtained as a result of such access shall be subject to the terms and conditions of the Nondisclosure Agreement. Except to the extent arising from or relating to the actions of Seller Parent, Seller, the Company, the Company Subsidiaries, their Affiliates and their Representatives, Buyer agrees to indemnify and hold harmless Seller Parent, Seller, the Company, the Company Subsidiaries, their Affiliates and their Representatives for any and all Losses to the extent arising out of the access rights under this Section 6.01, including any Losses by Seller Parent, Seller, the Company, the Company Subsidiaries, their Affiliates and their Representatives for any injuries or property damage while present at the Projects.
Appears in 1 contract
Investigation by Buyer. Through and with the assistance of such third- parties as Seller may hereafter approve in writing, Buyer has undertaken an independent review and analysis shall have the right, at any time after the date of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely to enter upon its own investigation and analysisthe Property in order to survey the Property, to make engineering inspections thereon, and to make drillings and borings and other examinations of the surface and subsurface conditions of the Property, including investigations of the soil and subsurface water conditions of the Property and environmental audits or investigations of the Property (collectively, "the investigations"), all at Buyer:
(a) acknowledges that none 's sole cost and risk. Buyer shall forever indemnify Seller from and against any and all liability suffered by Seller as a result of Seller or any of its Affiliates or any of Seller’s Representatives makes or has made any representation or warrantyBuyer's, of any kind or nature whatsoeveremployees', oral or writtenagents', express or implied (including, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4' activity upon the Property. Following the investigations, the future Property shall be restored by Buyer to the condition which existed prior to the investigations. Buyer shall promptly deliver copies of all results of operations (or the investigations, including all test data and reports, to Seller. Said information, test data, and reports resulting from the investigations will be kept strictly confidential and will not be used for any component thereof), cash flows or financial condition (or any component thereof), purpose other than the evaluation of a possible purchase of the Business; (b) future businessProperty. Under no circumstances will any part of same be provided to any third party, operationsexclusive of professional advisors engaged by Buyer to assist with this transaction, revenues or profits of unless Seller has first been satisfied that proper arrangements have been made to preserve its confidentiality and Seller has expressly consented in writing to Buyer's releasing the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as information to the accuracy or completeness of any other party. All necessary steps will be taken by Buyer to keep the information in full and complete confidence. None of the information provided or made available to Buyer or Buyer’s Representatives)resulting from the investigations may be copied, except for those representations and warranties expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its Affiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made availableduplicated, or statements madeotherwise reproduced in any form. In the event of a breach, to Buyer or Buyer’s Representatives (including any forecasts attempted or projected information), except that the foregoing limitations shall not apply with respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the contemplated breach of the specific representations foregoing obligations, Buyer hereby acknowledges that monetary damages alone will be inadequate to compensate Seller, and warranties set forth accordingly, Buyer agrees that, in Article V such event, Seller will be entitled to injunctive relief to prevent the disclosure of the information, together with such other remedies as may be available to Seller either at law or in equity. The obligations of Buyer contained in this paragraph 6 shall be continuing obligations of Buyer which shall survive the termination of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or implied, with respect to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules).
Appears in 1 contract
Investigation by Buyer. Buyer has undertaken an conducted its own independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Business and has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, FT Contract and the Assumed Obligations Liabilities and of the value of the FT Contract. Buyer has conducted its own independent review of all Orders of, and all motions, pleadings, and other submissions to, the Bankruptcy Court in connection with its decision to enter into the Bankruptcy Cases. Buyer acknowledges that the price being paid under this Agreement for the FT Contract is the fair value for acquiring the FT Contract under the circumstances and that such value, rather than replacement cost, is the Ancillary Agreements appropriate measure of damages if and to consummate the transactions contemplated hereby and thereby and acknowledges that extent Buyer and Buyer’s Representatives may have been provided access had any recourse for any failure to deliver the personnel, properties, premises and records FT Contract in accordance with the terms of Seller for such purposethis Agreement. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer:
Buyer acknowledges that (a) acknowledges that none of neither Seller or nor any of its Affiliates or any of Seller’s Representatives Related Persons makes or has made any representation or warranty, of any kind or nature whatsoever, oral or written, either express or implied (includingimplied, but not limited to, any relating to (a) projections, estimates or budgets delivered or made available to Buyer (or any of its Affiliates, officers, directors, employees or representatives) of, except as set forth in Section 5.4, the future results of operations (or any component thereof), cash flows or financial condition (or any component thereof), of the Business; (b) future business, operations, revenues or profits of the Business; (c) maintenance, repair, condition, design, performance, value, merchantability or fitness for any particular purpose of the Purchased Assets; or (d) as to the accuracy or completeness of any of the information provided or made available to Buyer or Buyer’s Representatives)any of its Related Persons, except for those representations as and warranties only to the extent expressly set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules)IV, and Seller hereby disclaims any such other representations or warranties;
(b) agrees, to the fullest extent permitted by applicable Law, that none of neither Seller or nor any of its Affiliates or any of Seller’s Representatives Related Persons shall have any liability or responsibility whatsoever to Buyer or its Related Persons on any basis (including in contract or tort, under securities Laws or otherwise) based upon any information provided or made available, or statements made, to Buyer or Buyer’s Representatives Related Persons (including or any forecasts or projected informationomissions therefrom), except that the foregoing limitations shall not apply with including in respect to Seller to the extent Seller has liability for indemnification pursuant to Article IX for the breach of the specific representations and warranties set forth in Article V of this Agreement (as qualified by the Seller Disclosure Schedules), but always subject to the limitations and restrictions contained herein;
(c) acknowledges that, except as expressly set forth in this Agreement, there are no representations or warranties of any kind, express or impliedexcept, with respect regard to the Business, the Purchased Assets or the Assumed Obligations; and
(d) none of Seller, its Affiliates or Seller’s Representatives shall have any liability or responsibility based upon any information provided or made available or statements made or omissions therefrom to Buyer, its Affiliates or their respective Representatives, except as and only to the extent expressly set forth in Article V Article IV (which are subject to the limitations and restrictions contained in this Agreement). Buyer has no knowledge of any condition, event or circumstance that constitutes a breach of any representation, warranty or covenant of Seller in this Agreement (as qualified by the Seller Disclosure Schedules)Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement
