No Other Representations and Warranties Except for the representations and warranties made by Parent in this Article V (as qualified by the applicable items disclosed in the Parent Disclosure Schedule in accordance with Section 11.05 and the introduction to this Article V) and in the certificate to be delivered by Parent pursuant to Section 9.03(c), neither Parent nor any other Person (including either Merger Sub) makes or has made any representation or warranty, expressed or implied, at law or in equity, with respect to or on behalf of Parent or its Subsidiaries, their businesses, operations, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding Parent or its Subsidiaries or any other matter furnished or provided to the Company or made available to the Company in any “data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection with, this Agreement or the transactions contemplated hereby. Parent and its Subsidiaries disclaim any other representations or warranties, whether made by Parent or any of its Subsidiaries or any of their respective Affiliates or Representatives. Each of Parent, Bidco and each Merger Sub acknowledges and agrees that, except for the representations and warranties made by the Company in Article IV (as qualified by the applicable items disclosed in the Company Disclosure Schedule in accordance with Section 11.05 and the introduction to Article IV) and in the certificate to be delivered by the Company pursuant to Section 9.02(c), neither the Company nor any other Person is making or has made any representations or warranty, expressed or implied, at law or in equity, with respect to or on behalf of the Company or its Subsidiaries, their businesses, operations, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Company or its Subsidiaries or any other matter furnished or provided to Parent or made available to Parent in any “data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection with, this Agreement, or the transactions contemplated hereby or thereby. Each of Parent, Bidco and each Merger Sub specifically disclaims that it is relying on or has relied on any such other representations or warranties that may have been made by any Person, and acknowledges and agrees that the Company and its Affiliates have specifically disclaimed and do hereby specifically disclaim any such other representations and warranties.
Issuer Representations and Warranties The Issuer represents and warrants that at the time of the signing of this Agreement and at the time of each closing of the Offering:
a. it is duly organized, validly existing and in good standing in the state in which it is incorporated with the power to own its properties and to conduct its business as described in the Offering Materials;
b. it is in good standing in each other jurisdiction in which the conduct of its business or ownership or leasing of its properties requires it to be so qualified or licensed, except whether the failure to be so qualified or licensed would not have a material adverse effect on the business, properties, assets, condition (financial or otherwise) or prospects of the Issuer taken as a whole;
c. the Issuer incorporates Section 3(b) above into this Section;
d. this Agreement has been duly authorized, executed, and delivered on behalf of the Issuer, and is the valid, binding and obligation of the Issuer, enforceable in accordance with its terms;
e. no authorization, approval, consent, or license of any regulatory body or authority is required for the valid authorization, sale or delivery of the securities in the Offering, or, if so required, all authorizations, approvals, consents and licenses have been or will be obtained and will remain in full force and effect;
f. the securities subject to the Offering will, when issued, sold and delivered in accordance with the terms of the Offering, be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under agreements with the Investors purchasing such securities and applicable state and federal securities laws;
g. if conducted in accordance with the terms of the Offering Materials and this Agreement, the Offering is exempt from the registration requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder and any applicable state requirements and is in compliance with all applicable rules and regulations under the Federal and any applicable State securities laws.
Investment Representations and Warranties The Purchaser understands and agrees that the offering and sale of the Securities has not been registered under the 1933 Act or any applicable state securities laws and is being made in reliance upon federal and state exemptions for transactions not involving a public offering which depend upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein.
REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Buyer as follows:
Company Representations and Warranties The Company represents and warrants to and agrees with each Subscriber that:
Representations and Warranties and Agreements The Adviser represents and warrants to the Sub-Adviser, on an on-going basis, that:
(a) The Fund is a “Qualified Purchaser” within the meaning of Investment Company Act of 1940; and
(b) The Fund is a “Qualified Eligible Person” as defined in CFTC Rule 4.7, and is either a member of, or exempt from any requirement to become a member of, the National Futures Association, and will maintain and renew such membership or exemption during the term of this Agreement. Further, the Adviser and the Sub-Adviser agree as follows:
(c) The Adviser acknowledges that the Sub-Adviser has been authorized to invest in derivatives for the Fund in accordance with the Fund’s investment objective and policies as stated in the Registration Statement. To the extent so authorized, the Adviser agrees that the Sub-Adviser, on the Fund’s behalf, and on such terms as the Sub-Adviser deems appropriate, with prior telephonic or email notice to and in consultation with the Adviser, may take any all such steps as may be required or permitted by the rules and regulations and/or by appropriate market practice to engage in derivatives transactions, including entering into ISDA agreements, clearing agreements, completing documentation, including documentation for clearing facilities, making representations and granting, and providing or executing counterparty documentation and account opening documentation on the Fund’s behalf, on such terms as the Sub-Adviser deems appropriate, in consultation with the Adviser.
(d) Further, subject to the limitations under the 1940 Act, the Adviser on request of the Sub-Adviser or the Sub-Adviser may, acting as agent on the Fund’s behalf, agree to a collateral mechanism with counterparties in the market and instruct the custodian to advance cash or securities as collateral to an account designated by the Fund’s custodian and counterparty, broker and/or futures commission merchant (“FCM”) (as applicable) to meet margin/collateral payments if and to the extent required by the rules of exchanges or markets on which such instruments are dealt or as may have been agreed in any master agreement or other contract with a counterparty, including with respect to agency MBS collateral. The Adviser authorizes the Sub-Adviser, to the extent required by regulatory agencies or market practice, to reveal its and/or the Fund’s identity and address to any counterparty, broker or FCM through which or with which financial derivatives and foreign exchange instruments are traded or cleared. The Sub-Adviser may use such clearing firm as it deems appropriate to clear its derivatives transactions. The Adviser covenants that the Fund has full capacity to invest in financial derivatives and foreign exchange instruments.
(e) The Sub-Adviser (which is registered with the CFTC as a Commodity Trading Adviser) intends to operate the Fund as an exempt account under CFTC Rule 4.5. PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS AGREEMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMODITY FUTURES TRADING COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS AGREEMENT.
REPRESENTATIONS AND WARRANTIES OF SELLERS Sellers represent and warrant to Buyer as follows:
Purchaser Representations and Warranties The Purchaser hereby represents and warrants to the Sellers as of the Closing Date (or if otherwise specified below, as of the date so specified) that:
1. the Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware;
2. the Purchaser has full corporate power to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
3. the execution and delivery by the Purchaser of this Agreement have been duly authorized by all necessary corporate action on the part of the Purchaser; and neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated hereby, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Purchaser or its properties or the certificate of formation or limited liability company agreement of the Purchaser, except those conflicts, breaches or defaults which would not reasonably be expected to have a material adverse effect on the Purchaser’s ability to enter into this Agreement and to consummate the transactions contemplated hereby;
4. the execution, delivery and performance by the Purchaser of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except those consents, approvals, notices, registrations or other actions as have already been obtained, given or made;
5. this Agreement has been duly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery by the Sellers, constitutes a valid and binding obligation of the Purchaser enforceable against it in accordance with its terms (subject to applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally); and
6. except as previously disclosed in the Prospectus Supplement, there are no actions, suits or proceedings pending or, to the knowledge of the Purchaser, threatened against the Purchaser, before or by any court, administrative agency, arbitrator or governmental body (i) with respect to any of the transactions contemplated by this Agreement or (ii) with respect to any other matter which in the judgment of the Purchaser if determined adversely to the Purchaser would reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its obligations under this Agreement; and the Purchaser is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect the transactions contemplated by this Agreement;
Representations and Warranties of the Purchasers Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
REPRESENTATIONS AND WARRANTIES OF THE VENDORS The Vendors hereby represent and warrant to the Allottee as follows:
(i) The Owners have marketable title with respect to the said Land on the basis of the several purchase deeds executed and registered in favour of the Owners, details whereof are mentioned in Schedule-H hereto and absolute, actual, physical and legal possession of the said Land for the Project;
(ii) The Promoter has lawful rights and requisite approvals from the competent Authorities to carry out development of the Project;
(iii) There are no encumbrances upon the said Land or the Project created by the Owners and the Promoter;
(iv) There are no litigations pending against the Owners and Promoter before any Court of law or Authority with respect to the said Land, Project or the said Apartment;
(v) All approvals, licenses and permits issued by the Corporation with respect to the Project, said Land and the said Apartment are valid and subsisting and have been obtained by following due process of law. Further, the Promoter has been and shall, at all times, remain to be in compliance with all applicable laws in relation to the Project, said Land, said Block and the said Apartment and Common Areas;
(vi) The Vendors have the right to enter into this Agreement and have not committed or omitted to perform any act or thing whereby the right of the Allottee created herein, may prejudicially be affected.
(vii) The Vendors have not entered into any agreement for sale or any other agreement/arrangement with any person or party with respect to the said Land including the Project and the said Apartment which will, in any manner, affect the rights of Allottee under this Agreement;
(viii) The Vendors confirm that the Vendors are not restricted in any manner whatsoever from selling the said Apartment to the Allottee in the manner contemplated in this Agreement;
(ix) At the time of execution of the conveyance deed the Promoter shall hand over lawful, vacant, peaceful, physical possession of the said Apartment to the Allottee;
(x) The said Apartment is not the subject matter of any HUF and that no part thereof is owned by any minor and/or no minor has any right, title and claim over the said Apartment;
(xi) The Promoter has duly paid and shall continue to pay and discharge all governmental dues, rates, charges and taxes and other monies, levies, impositions, premiums, damages and/or penalties and other outgoings, whatsoever, payable with respect to the said Land to the Corporation till the Completion Certificate is issued;
(xii) No notice from the Government or any other local body or authority or any legislative enactment, government ordinance, order, notification (including any notice for acquisition or requisition of the said Apartment) has been received by or served upon the Promoter in respect of the said Land and/or the Project.
