Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing): (a) it is duly organized and validly existing under the laws of its jurisdiction of incorporation; and (b) all corporate action of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly taken; (c) The Vendor has the authority to execute, deliver and perform this Agreement; (d) The Vendor is the sole legal and beneficial owner of the Shares; (e) The Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party. (f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof. (g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal; (h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 2 contracts
Representations and Warranties of Vendor. The Vendor hereby represents and warrants provides to Purchaser the disclosures set out on Schedule "F" relative to the Assets. Purchaser acknowledges that it is purchasing Vendor's interest in and to the Assets on an "as is, where is" basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, whether verbal or in writing and whether contained herein including in a schedule attached hereto or otherwise, except that Vendor makes only the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of twelve (12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it Vendor is a general partnership and is duly organized and organized, validly existing under and is authorized to carry on business in the laws jurisdiction(s) in which the Assets are located, and the managing partner of its jurisdiction Vendor is Devon Canada Corporation, a corporation duly incorporated, validly existing and is authorized to carry on business in the jurisdiction(s) in which the Assets are located. Vendor now has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of incorporation; andVendor in and to the Assets according to the true intent and meaning of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite corporate, partnership, shareholders' and directors' actions and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which Vendor is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has the authority is party or by which Vendor is bound, nor under any judgement, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this AgreementVendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The except for consent required from the Crown in right of the Yukon Territory with regard to the transfer and assignment of all requisite approvals, licenses and permits pertaining to the Assets and the operatorship of the Assets from Vendor is in good standing and has complied with all its legalto Purchaser, auditno authorization or approval or other action by, fiscal and filing requirements and no chargesnotice to or filing with, liens any governmental authority or encumbrances were registered regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or are capable of registration against exemptions from requirement therefor, previously obtained and currently in force, or those to be received under the Vendor Competition Act (either with the Registrar of Companies by virtue of section 90 of the Company’s LawCanada), Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.if applicable;
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers' or receiver been appointed or any distress, execution or any other process been levied finders' fees in respect of the undertaking this Agreement or the assets of the Vendor transaction to be effected by it for which Purchaser shall have any obligation or any part thereof.liability;
(g) The entering into this Agreement Vendor is not a non-resident within the meaning of section 116 of the Income Tax Act (Canada) and the interest of Vendor in and to the Assets does not and will not cause constitute all or substantially all the Vendor to be in breach property of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalVendor;
(h) There other than Permitted Encumbrances, (i) Vendor has not alienated or encumbered the Assets or any part or portion thereof, (ii) Vendor has not committed any act or omission and is not aware of there having been committed any act or omission by any Third Party whereby the interest of Vendor in and to the Assets or any part or portion thereof may be cancelled or determined, and (iii) the Assets are now free and clear of all liens, royalties, conversion rights and other claims of Third Parties, created by, through or under Vendor and Vendor has no Encumbrancereason to believe that any such claims may be made;
(i) subject to the rents, covenants, conditions and stipulations in the Title Documents and the Permitted Encumbrances, from and after Closing, Purchaser will be entitled to hold and enjoy the interests in the Assets attributed to the Vendor herein for Purchaser's own use and benefit without any interruption of or by Vendor or any Third Party claim by, through or under Vendor;
(j) no suit, action or other proceeding before any court or governmental agency has been commenced and served against Vendor in respect of or relating to the Assets or, to the best of the knowledge, information and belief of Vendor, has been threatened or commenced against Vendor, in respect of or relating to the Assets;
(k) all amounts due and payable to Third Parties prior to the date hereof and pertaining to the Assets have been fully paid, including without limitation (i) any and all ad valorem and property taxes, (ii) any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of the Leased Substances or any of them or the receipt of proceeds therefor, and (iii) all amounts due and payable in connection with Permitted Encumbrances;
(l) in respect of the Assets, except in connection with the AFEs, at the Effective Date, there are no financial commitments agreed to by Vendor which are over $25,000.00 (Vendor's share), other than usual operating expenses incurred in the normal conduct of operations and budgeted capital and expenditures, or those that may be terminated without penalty after Closing by Purchaser;
(m) except for the Production and Marketing Contracts, Vendor is not a party to and Vendor's interest in and to the Assets is not otherwise bound or affected by any (i) production sales contracts pertaining to the Leased Substances or any of them that cannot be terminated on notice of 31 days or less (without an early termination penalty or other cost), (ii) gas balancing or similar agreements pertaining to the Leased Substances or any of them, (iii) agreements for the transportation, processing or disposal of the Leased Substances or any of them or substances produced in connection with the Leased Substances or any of them, (iv) agreements for the contract operation by a Third Party of the Assets or any of them, (v) agreements to provide transportation, processing or disposal capacity or service to any Third Party, and (vi) any take or pay or similar obligation related to the Assets;
(n) no tangible depreciable property and assets which are used, were used or are intended to be used in producing, processing, gathering, treating, measuring, making marketable or injecting the Leased Substances or any of them or in connection with water injection or removal operations that pertain to the Petroleum and Natural Gas Rights, has been removed from its location since the Effective Date;
(o) none of the interest of Vendor in and to the Assets is subject to any ROFRs created by, through or under Vendor or that become operative by virtue of this Agreement or the transaction to be effected by it;
(p) Vendor has not failed to comply with, perform, observe or satisfy any material term, condition, obligation or liability which has heretofore arisen under the provisions of any of the Title Documents or any other agreements and documents to which the Assets are subject;
(q) Vendor has not received notice of default and is not, to the knowledge, information and belief of Vendor, in any default under any obligation, agreement, document, order, writ, injunction or decree of any court or of any commission or administrative agency, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets;
(r) Other than as described in Schedule "F", Vendor has not received:
(i) any orders or directives which relate to Environmental Matters and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof;
(s) in respect of the Assets that are operated by Vendor, Vendor holds all valid licenses, permits and similar rights and privileges that are required and necessary under applicable law to operate the Assets as presently operated;
(t) any and all operations of Vendor, and to the knowledge of Vendor, any and all operations by Third Parties, on or in respect of the Assets, have been conducted in accordance with good oil and gas industry practices and in material compliance with all applicable Regulations in effect at the relevant time;
(u) except as specifically identified in Schedule "A", no obligations have accrued pursuant to the Title Documents that may be satisfied by the drilling of a well, the payment of compensatory royalty or the surrender of some or all of the interests granted, reserved or otherwise conferred pursuant to the Title Documents, other than obligations that have been satisfied (by means other than by the payment of compensatory royalties) or have been permanently waived;
(v) except as specifically identified in Schedule "A", there are no active area of mutual interest provisions in any of the Title Documents or other agreements or documents to which the Assets are subject;
(w) except as specifically identified in Schedule "A" and excepting production limits of general application in the oil and gas industry, none of the Xxxxx is subject to production or other penalties imposed by the Title Documents or by any other agreements and documents to which the Assets are subject, or by any Regulations;
(x) current and complete copies of all contracts, agreements, commitments, instruments and other documents identified in any of the Schedules hereto, including the Title Documents, have been made available for inspection by Purchaser; and
(y) to the best of its knowledge, the Vendor is in compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment (including pay equity), wages and hours, and health and safety, and there is are no agreement, arrangement or obligation to create or give an Encumbrance, outstanding orders against the Vendor in relation to any the foregoing in respect of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any operation of the SharesLands or the Assets.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Efl Overseas, Inc.), Purchase and Sale Agreement (Efl Overseas, Inc.)
Representations and Warranties of Vendor. The To induce the Purchaser to enter into and complete the transactions contemplated by this Agreement, the Vendor hereby represents and warrants to the Purchaser warrants, as representations and warranties that the following is true, accurate are true and not misleading correct as at the date hereof and that will be true and correct on each of the Effective Date and the Closing Date as if such representations and warranties were made on each of the Effective Date and the Closing Date (except insofar as such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date or period) that:
a) the Vendor:
i) is a company duly incorporated under the federal laws of Canada and is not a reporting company or reporting issuer under any laws of its incorporation or extra-provincial registration;
ii) is duly organized, validly exists and is in good standing with respect to the filing of its annual reports;
iii) is registered in and in good standing with respect to the filing of annual reports in each jurisdiction in which the nature of the business conducted by it or the property owned or leased by the Vendor makes such qualification necessary; and
iv) has the full power, authority, right and capacity to own and dispose of the Purchased Assets, to execute and deliver this Agreement, to complete the transactions contemplated hereby and to duly observe and perform all of its covenants and obligations herein set forth;
b) this Agreement has been duly and validly executed and delivered by the Vendor and constitutes a legal, valid and binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, except as may be limited by laws of general application affecting the rights of creditors;
c) neither the execution nor the delivery of this Agreement Agreement, or the other agreements and instruments contemplated hereby, nor the completion of the transactions contemplated hereby will:
i) constitute or result in the breach of or default under any terms, provisions or conditions of, or conflict with, violate or cause any, or give to any person or Governmental Authority any right of, after the giving of a notice or lapse of time or otherwise, acceleration, termination or cancellation in or with respect to any of the following:
(immediately before ClosingA) any constating documents, charter documents or by-laws of the Vendor or any resolution of directors or shareholders of the Vendor;
(B) any indenture, mortgage, deed of trust, agreement, contract, lease, franchise, certificate, consent, permit, licence, authority, registration or other instrument or commitment to which the Vendor is deemed to warrant a party or is subject, or by which it is bound or from which it derives benefit or which is required or desirable for the conduct in the usual and represent to the Purchaser that each ordinary course of the following is true, accurate and not misleading by reference to operation of the facts and circumstances as at Closing):
(a) it is duly organized and validly existing under the laws of its jurisdiction of incorporationBusiness; and
(bC) all corporate action any law, judgment, decree, order, injunction, rule, statute or regulation of any court, arbitrator or Governmental Authority by which the Business, the Purchased Assets or the Vendor required for is subject;
ii) result in the lawful creation of any Encumbrance on any of the Purchased Assets;
iii) result in any fees, duties, Taxes, assessments or other amounts relating to any of the Purchased Assets becoming due or payable, other than provincial sales or social service tax and valid consummation of goods and services tax payable by the Purchaser in connection with the transactions contemplated herein have been duly takenhereby; or
iv) enable any employee or former employee of the Vendor to make any claims or assert any rights against the Purchaser under any employment standards or similar legislation governing employees of the Vendor;
(cd) The no authorization, approval, order, licence, permit, consent, certificate or registration of any Governmental Authority, court or arbitrator, and no registration, declaration or filing by the Vendor has with any Governmental Authority, court or arbitrator, is required in order for the authority Vendor:
i) to execute, deliver and perform incur the obligations expressed to be incurred by the Vendor in or pursuant to this Agreement;
ii) to execute and deliver all other documents and instruments to be delivered by the Vendor pursuant to this Agreement;
iii) to duly perform and observe the terms and provisions of this Agreement; or
iv) to render this Agreement legal, valid, binding and enforceable;
e) Schedule H accurately sets out a list of all DTA Asset Subscribers and SMATV Asset Subscribers as at December 31, 2000;
f) the Vendor maintains insurance in force against loss on such of the Purchased Assets and against such risks and to such limits as is in accordance with prudent business practices prevailing in the industry in which the Business is involved and having regard to the location, age and character of the Purchased Assets and has complied fully with all requirements of such insurance, including the prompt giving of any notice of any claim or possible claim thereunder;
g) the Vendor has not, directly or indirectly, sold transferred, disposed of, mortgaged, pledged, charged or leased any of the Purchased Assets;
h) the Vendor has not, directly or indirectly, engaged or entered in any transaction or made any disbursement or assumed or incurred any liability or obligation or made any commitment to make any expenditure which might materially and adversely affect any of the Purchased Assets;
i) except for Court of Queen's Bench of Alberta (dJudicial District of Edmonton) The Action Number Q9903 11879, Xxxx Cablesystems Ltd. v. MDU Communications Inc., no action, suit, judgment, investigation, inquiry, assessment, reassessment, litigation, determination or administrative or other proceeding or arbitration before or of any court, arbitrator or Governmental Authority or dispute with any Governmental Authority is in process, or, to the knowledge of the Vendor, pending or threatened, against or relating to the Vendor, the Business or any of the Purchased Assets, or affecting the right of the Vendor to enter into this Agreement or perform its obligations hereunder and no state of facts exists which could constitute the basis therefor;
j) the Vendor has not used the Business or any of the Purchased Assets, or permitted them to be used, to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process Hazardous Substances, except in compliance with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, including all environmental, health and safety statutes and regulations, and to the best of the Vendor's knowledge, neither has any lessee, prior owner or other person;
k) the Purchased Assets and the Business comply with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, and none of the Purchased Assets or the Business is subject to any judicial or administrative proceeding alleging the violation of any law, judgment, decree, order, injunction, rule, statute or regulation;
l) all licenses, consents, permits, authorities, certificates and registrations which are required for the ownership and use of the Purchased Assets in the usual and ordinary course of the Business have been obtained, are validly issued, are in full force and effect and are in good standing and no notice of breach or default or defect in respect of the terms thereof has been received by the Vendor and the Vendor is not aware of any matters which could give rise to such notice;
m) Schedules A, B, C, D, E and F are accurate lists of the Purchased Assets, and the assets described and listed in the Schedules comprise all of the Purchased Assets;
n) the Vendor is the sole legal and beneficial owner of and has good and marketable title to the SharesPurchased Assets free and clear of all Encumbrances and none of the Assets is in the possession of or under the control of any other person;
o) all tangible rights, assets and properties comprising the Purchased Assets are free from material defect, are in good condition and repair and (ewhere applicable) The are in proper working order, having regard to the use and age thereof, and the Undeployed Receivers existing in inventory on the Effective Date shall remain unused to the Closing Date;
p) there has not been any default or breach of any term, condition, provision or obligation to be performed under any agreement forming part of the Purchased Assets, either by the Vendor or the other party thereto, and each agreement is in good standing and has complied with all its legalin full force and effect, auditunamended, fiscal and filing requirements and no charges, liens on or encumbrances were registered or are capable of registration against before the Effective Date the Vendor will have paid to all persons entitled thereto all amounts (either with including interest and penalties) which are due and owing by the Registrar of Companies by virtue of section 90 Vendor up to and including the Effective Date: i) under the building owner access agreements and other agreements forming part of the Company’s LawPurchased Assets, Cap 113, as amended (the “Law”and ii) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of acquisition by the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalPurchased Assets other than acquisitions from the Purchaser;
(hq) There is no Encumbranceexcept for this Agreement, and there is no written, oral or implied agreement, arrangement option, understanding or obligation commitment or any right or privilege capable of becoming any of the same, for the purchase from the Vendor of any of the Purchased Assets;
r) except for payments outstanding by the Vendor under various building owner access agreements which the Vendor is required to pay in full by the Effective Date in accordance with subsection 5.1(c) hereof, there is no indebtedness to any person which might, by operation of law or otherwise, now or hereafter constitute or be capable of forming an Encumbrance upon any of the Purchased Assets;
s) none of the Purchased Assets is in any respect infringing the right of any person under or in respect of any patent, design, trade xxxx, trade name, copyright or other industrial or intellectual property;
t) the Vendor has not made any collective bargaining agreement or other agreement with a trade union, labour union or other employees' association or made commitments or conducted negotiations with any trade union, labour union or other employees' association with respect to any future agreements, and the Vendor is not aware of any current attempt to organize or establish any trade union, labour union or other employees' association in connection with the Business and no part of the Business has been certified as a unit appropriate for collective bargaining by which the Purchaser will be bound as a result of the purchase of the Purchased Assets;
u) the Vendor is not a non-resident of Canada for the purposes of s.116 of the Income Tax Act of Canada;
v) all negotiations relative to this Agreement have been carried on by the Vendor directly with the Purchaser, without the intervention of any agent, broker or other party acting on behalf of any of the Vendor and there are no brokerage fees, commissions or other fees or amounts which are or may become payable to any third party in connection with the execution and delivery of this Agreement and the completion of the transactions contemplated herein;
w) the Vendor is registered pursuant to Subdivision d of Division V of Part IX of the Excise Tax Act of Canada;
x) the Vendor has not executed any agreements to give any security over any of the Purchased Assets and the Vendor has not executed any bonds, debentures, promissory notes or agreements to create any bonds, debentures or give an Encumbrance, promissory notes in relation to or otherwise affecting any of the Shares. No person Purchased Assets;
y) the Vendor has claimed duly and accurately completed in all material respects and duly filed in a timely manner, all returns and other reports required to be entitled filed by it in respect of all Taxes or withholdings or premiums of any nature whatsoever due to an Encumbrance taxing authorities in all jurisdictions applicable in relation to or otherwise affecting the Business or the Purchased Assets and it has paid all Taxes which are due and payable, and without limitation:
i) the Vendor is in compliance with all registration, timely reporting and remittance obligations in respect of all Taxes, including provincial and federal sales and excise tax legislation and the goods and services tax;
ii) there are no tax liens upon any of the Shares.Purchased Assets;
iii) no claims for additional Taxes, including for filing fees or other amounts and assessments in relation to or otherwise affecting, or relating to the Purchased Assets, has been made which has not been paid;
iv) no such return or report contains any misstatement or contains any statement that should have been included therein;
v) the Vendor has withheld and will hold until the Closing Date from each payment made to any employee of the Vendor the amount of all Taxes (including but not limited to income tax) contributions, remittances and other deductions required by statute or contract to be withheld therefrom and has paid or will pay such amounts to the proper tax or other receiving authority or entity, as and when required by law or contract;
vi) there are no actions, audits, assessments, reassessments or suits nor to the knowledge of the Vendor, any proceedings, investigations, claims or reviews now in progress, pending or threatened against the Vendor in respect of Taxes or any matters under discussion with any Governmental Authority relating to Taxes asserted by any such Governmental Authority in relation to or otherwise affecting, the Purchased Assets. No objections or appeals to any assessment or reassessment have been filed. In particular, there are no currently outstanding assessments or reassessments or written inquiries that have been issued or raised and communicated to the Vendor by any Governmental Authority relating to any such taxes;
z) there are no liabilities, actual or contingent, accrued or otherwise, of the Vendor relating to the Business or the Purchased Assets of any kind whatsoever whether or not determined or determinable in respect of which the Purchaser will or may become liable on or after the Effective Date; aa) none of the Purchased Assets, including the agreements, written or oral, forming part of the Purchased Assets, requires the consent, waiver, release or approval of any person whatsoever in order to effectively transfer the Purchased Assets to the Purchaser as contemplated by this Agreement, except those Purchased Assets listed in Schedule I hereto; bb) the Vendor possesses no information or knowledge of facts relating to the Purchased Assets which might reasonably be expected to deter the Purchaser from completing the transactions herein contemplated for the Purchase Price and on the other terms and conditions of this Agreement;
cc) except as disclosed in this Agreement, the Vendor does not have any information or knowledge of any fact relating to the Business, the Purchased Assets or any indebtedness of the Business or the transactions contemplated hereby which might reasonably be expected to affect, materially and adversely, any of the Purchased Assets; dd) no certificate furnished by or on behalf of the Vendor to the Purchaser at the time of Closing in respect of the representations, warranties or covenants of the Vendor contained in this Agreement will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading; and
Appears in 1 contract
Samples: Asset Purchase Agreement (Mdu Communications International Inc)
Representations and Warranties of Vendor. The Vendor hereby represents Purchaser acknowledges that it is purchasing Vendor’s interest in and warrants to the Assets on an “as is, where is” basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, except that and subject in all instances to Permitted Encumbrances, Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of twelve (12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it Vendor is a corporation duly organized and validly existing under the laws of its the jurisdiction of incorporation; andincorporation of Vendor, is authorized to carry on business in the Province in which the Lands are located, and now has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of Vendor in and to the Assets according to the true intent and meaning of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite corporate, shareholders’ and directors’ actions and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which Vendor is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has the authority is party or by which Vendor is bound, nor under any judgment, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this AgreementVendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The Vendor is in good standing and has complied with all its legalother than the Competition Act Condition, auditno authorization or approval or other action by, fiscal and filing requirements and no chargesnotice to or filing with, liens any governmental authority or encumbrances were registered regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Lawexemptions from requirement therefor, Cap 113, as amended (the “Law”) or previously obtained and currently in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.force;
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers’ or receiver been appointed or any distress, execution or any other process been levied finders’ fees in respect of the undertaking this Agreement or the assets of the Vendor transaction to be effected by it for which Purchaser shall have any obligation or any part thereof.liability;
(g) The entering into this Agreement Vendor is not a non-resident within the meaning of section 116 of the Income Tax Act (Canada) and the interest of Vendor in and to the Assets does not and will not cause constitute all or substantially all the Vendor to be in breach property of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalVendor;
(h) There no tangible depreciable property and assets in which Vendor had an interest which are used, were used or are intended to be used in producing, processing, gathering, treating, measuring, making marketable or injecting the Leased Substances or any of them or in connection with water injection or removal operations that pertain to the Petroleum and Natural Gas Rights, has been removed from its location since Adjustment Date, nor has Vendor alienated or encumbered any such tangible depreciable property and assets since such date;
(i) Vendor has not alienated or encumbered the Assets or any part or portion thereof, Vendor has not committed and is no Encumbrancenot aware of there having been committed any act or omission whereby the interest of Vendor in and to the Assets or any part or portion thereof may be cancelled or determined, and there the Assets are now free and clear of all liens, royalties, conversion rights and other claims of Third Parties, created by, through or under Vendor or of which Vendor has knowledge;
(j) except as may be set out in Schedule “C”, none of the interest of Vendor in and to the Assets is subject to any preferential, pre-emptive or first purchase rights, created by, through or under Vendor or of which Vendor is aware, that become operative by virtue of this Agreement or the transaction to be effected by it;
(k) Vendor has not received notice from any Third Party claiming an interest in and to the Assets adverse to the interest of Vendor and Vendor has no agreementreason to believe that any such claim may be made;
(l) To the best of Vendor’s knowledge, arrangement Vendor has not failed to comply with, perform, observe or satisfy any term, condition, obligation to create or give an Encumbrance, in relation to liability which has heretofore arisen under the provisions of any of the Shares. No person Title Documents or any other agreements and documents to which the Assets are subject;
(m) To the best of Vendor’s knowledge, information and belief, Vendor has claimed not received notice of default and is not, to the knowledge, information and belief of Vendor, in any default under any obligation, agreement, document, order, writ, injunction or decree of any court or of any commission or administrative agency, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets;
(n) no suit, action or other proceeding before any court or governmental agency has been commenced against Vendor or, to the knowledge, information and belief of Vendor, has been threatened against Vendor or any Third Party, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets or any rights to, and rights to enter upon, use or occupy the surface of any lands which are or may be used to gain access to or otherwise use the Petroleum and Natural Gas Rights and the Tangibles, or either of them;
(o) all amounts due and payable to Third Parties prior to the date hereof and pertaining to the Assets have been fully paid, including without limitation (i) any and all ad valorem and property taxes, (ii) any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of the Leased Substances or any of them or the receipt of proceeds therefor, (iii) all rentals, royalties and other amounts due pursuant to the Title Documents, and (iv) all amounts due and payable in connection with Permitted Encumbrances, provided however, in the case of any and all amounts due and payable prior to the time Vendor acquired an interest in and to the Assets to which such amounts pertain, Vendor makes this representation and warranty only based upon its knowledge, information and belief;
(p) in respect of the Assets, except in connection with the AFE’s, there are no financial commitments of Vendor which are in excess of $25,000.00 and which are due as of the date hereof or which may become due by virtue of matters occurring or arising prior to the date hereof, other than usual operating expenses incurred in the normal conduct of operations;
(q) in respect of the Assets that are operated by Vendor, to the knowledge, information and belief of Vendor, if any, Vendor holds all valid licenses, permits and similar rights and privileges that are required and necessary under applicable law to operate the Assets as presently operated;
(r) any and all operations of Vendor, and to the knowledge, information and belief of Vendor, any and all operations by Third Parties, on or in respect of the Assets, have been conducted in accordance with good oil and gas industry practices and in material compliance with all applicable laws, rules, regulations, orders and directions of governmental and other competent authorities;
(s) the Tangibles operated by Vendor, if any, are in good and operable condition, reasonable wear and tear excepted, and the Tangibles operated by Third Parties, if any, are in good and operable condition, reasonable wear and tear excepted, to the knowledge, information and belief of Vendor;
(t) no obligations have accrued pursuant to the Title Documents that may be satisfied by the drilling of a well, the payment of compensatory royalty or the surrender of some or all of the interests granted, reserved or otherwise conferred pursuant to the Title Documents, other than obligations that have been satisfied (by means other than by the payment of compensatory royalties) or have been permanently waived;
(u) excepting production limits of general application in the oil and gas industry, none of the Xxxxx is subject to production or other penalties imposed by the Title Documents or by any other agreements and documents to which the Assets are subject, or by any laws, rules, regulations, orders or directions of governmental or other competent authorities;
(v) the licensee liability rating (as set forth and described in ERCB Directive 006: Licensee Liability Rating Program and Licence Transfer Process) of Vendor equals or exceeds 1.0 and will not fall below 1.0 as a result of any licence transfer application(s) submitted or to be entitled submitted in respect of the Assets and the transaction effected hereby;
(w) Vendor is not aware of and has not received:
(i) any orders or directives which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof;
(x) Vendor has made all reasonable inquiries and searches for material documents and information, it has delivered or made available to Purchaser all documents, instruments, records and books relevant to Vendor’s title to the Lands and the Title Documents and in Vendor’s possession or to which it has reasonable access;
(y) Vendor is not in default of any amounts required to be paid to any workers’ compensation board under any applicable laws or regulations, for which Purchaser shall have any obligation or liability;
(z) the Assets are not subject to an Encumbrance agreement which provides for areas of mutual interest or areas of exclusion;
(aa) except as described in relation Schedule “A”, Vendor has not elected or refused to participate in any exploration, development or other operation on the Lands, which has given or may give rise to penalties or forfeitures;
(bb) To the best of Vendor’s knowledge, Vendor has not received notice under applicable laws or regulations to abandon any Well which has not been properly abandoned in accordance with applicable laws and regulations;
(cc) except for the Production Contracts, Vendor is not a party to and Vendor’s interest in and to the Assets is not otherwise bound or affected by any (i) production sales contracts pertaining to the Leased Substances or any of them that cannot be terminated on notice of 31 days or less (without an early termination penalty or other cost), (ii) gas balancing or similar agreements pertaining to the Leased Substances or any of them, (iii) agreements for the transportation, processing or disposal of the Leased Substances or any of them or substances produced in connection with the Leased Substances or any of them, (iv) agreements for the contract operation by a Third Party of the Assets or any of them, and (v) agreements to provide transportation, processing or disposal capacity or service to any of the SharesThird Party; and (dd) there are no Take or Pay Obligations.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lone Pine Resources Inc.)
Representations and Warranties of Vendor. The To induce the Purchaser to enter into and complete the transactions contemplated by this Agreement, the Vendor hereby jointly and severally represents and warrants to that: the Purchaser that Vendor: is a company duly incorporated under the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each Laws of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it is duly organized and validly existing United Kingdom in good standing under the laws of its jurisdiction of incorporation; and
(b) is in good standing in each jurisdiction in which the nature of its business conducted by it or the property owned or leased by the Vendor makes such qualification necessary; has the full power, authority, right and capacity to own, lease and dispose of the Assets, to carry on the Business as now being conducted by it, to execute and deliver this Agreement, to complete the transactions contemplated hereby and to duly observe and perform all of its covenants and obligations herein set forth; and Authority to Sell the execution and delivery of this Agreement and the completion of the transaction contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Vendor, and this Agreement constitutes a legal, valid and binding obligation of the Vendor required for enforceable against it in accordance with its terms except as may be limited by laws of general application affecting the lawful rights of creditors; Sale Will Not Cause Default neither the execution and valid consummation delivery of this Agreement, nor the other agreements and instruments contemplated hereby, nor the completion of the transactions contemplated herein have been duly taken;
(c) The Vendor has the authority to execute, deliver and perform this Agreement;
(d) The Vendor is the sole legal and beneficial owner of the Shares;
(e) The Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of will: violate any of the terms and provisions of the constating documents or by-laws or articles of the Vendor, or any agreement order, decree, statute, by-law, regulation, covenant, restriction applicable to the Vendor or arrangement any of the Assets; give any person the right to terminate, cancel or order remove any of the Assets, or injunction the Material Contracts; result in the creation of any Court lien, charge or competent tribunal;
(h) There encumbrance on any of the Assets. Assets the Vendor is no Encumbrancethe legal and beneficial owner of the Assets and possesses and has good and marketable title to the Assets free and clear of all mortgages, and liens, charges, pledges, security interests, encumbrances or other claims whatsoever; Litigation there is no agreementlitigation, arrangement arbitration, or obligation administrative or governmental proceeding or inquiry pending, or to create the knowledge of the Vendor, threatened against or give an Encumbrancerelating to the Vendor, in relation to the Business, or any of the Shares. No person has claimed Assets, nor does the Vendor know of or have reasonable grounds that there is any basis for any such action, proceeding or inquiry; Conformity with Laws all governmental licenses and permits required for the conduct in the ordinary course of the operations of the Business and the uses to which the Assets have been put, have been obtained and are in good standing and such conduct and uses are not in breach of any statute, by-law, regulation, covenant, restriction, plan or permit; Material Contracts the Schedule C - Material Contracts contains a true and correct listing of each written or oral contract or business relationship established by the Vendor, to be entitled acquired or assumed by the Purchaser; Material Facts this Agreement does not contain any untrue statement by the Vendor of a material fact nor has the Vendor omitted to an Encumbrance state in relation this Agreement a material fact necessary in order to make the statements contained herein not misleading; Schedule Information all information set out in the Schedules to this Agreement is accurate and correct in every material respect; No Defaults except as otherwise expressly disclosed herein or in any Schedule hereto there has not been any default in any obligation to be performed under any Material Contract, each of which is in good standing and in full force and effect, unamended, except as set forth in the Shares.Schedule of Material Contracts;
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Green Solutions Inc.)
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser as follows and acknowledges that the following Purchaser is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of relying upon the following is true, accurate representations and not misleading by reference to warranties in connection with the facts and circumstances as at Closing):transactions contemplated hereby:
(a) The Vendor has the corporate power and capacity to enter into this Agreement, and to perform its obligations hereunder, and any other instruments delivered pursuant hereto. This Agreement and each other instrument required to be delivered by the Vendor hereunder has been, or will as of the Closing Time be, duly authorized, executed and delivered by the Vendor and is a valid and binding obligation of the Vendor enforceable against it is in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization and other laws relating to or affecting the enforcement of creditors’ rights generally, and the fact that equitable remedies, including the remedies of specific performance and injunction, may only be granted in the discretion of a court. Each action required to be performed by the Vendor hereunder has been duly organized and validly existing under authorized by the laws of Vendor and, as applicable, its jurisdiction of incorporation; andshareholders;
(b) all corporate action that the Indebtedness of Vendor required for INII is no less than the lawful principal amount and valid consummation interest described in Schedule “A” of the transactions contemplated herein have been duly takenAssignment;
(c) The that no person, firm or corporation has any written or oral agreement, option, understanding or commitment, or any right or privilege capable of becoming an agreement, for the purchase or assignment from the Vendor has of any or all of the authority to execute, deliver and perform this AgreementPurchased Assets;
(d) The that the Vendor is not aware of any imperfections in the sole legal and beneficial owner execution, registration or perfection of the Shares;Security; and
(e) The Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against that the Vendor (either with may assign all of its right, title, benefit and interest in and to the Registrar Purchased Assets without the consent of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution INII or any other process been levied in party. Except as specifically set out herein, this Agreement is made without representation or warranty whatsoever with respect to the execution, attachment, registration or perfection of any security interest held by the Vendor under the Security, the validity and enforceability of the undertaking or the assets of the Vendor Security or any part thereof.
priority granted by any principle of law or any statute, including the Personal Property Security Act (g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no EncumbranceOntario), and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of competing security interests over the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the SharesSecurity.
Appears in 1 contract
Representations and Warranties of Vendor. The following representations and warranties are made and given by the Vendor hereby represents and warrants to the Purchaser that and expressly survive the following is true, accurate and not misleading at closing of this agreement. The representations are true as of the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant agreement and represent to the Purchaser that each will be true as of the following is true, accurate and not misleading by reference date of closing when they shall continue as warranties according to the facts and circumstances as at Closing):their terms:
(a) it is duly organized the Articles of Incorporation and validly existing under all amendments to the laws Articles of its jurisdiction Incorporation of incorporationthe Corporation are as stated in Schedule B; and
(b) all corporate action the issued share capital of Vendor required the Corporation is as stated in Schedule C; (c) the balance sheet appended in Schedule A and the financial statements for the lawful and valid consummation last three complete fiscal years of the transactions contemplated herein Corporation produced by the Vendor appended in Schedule D have been duly takenprepared in accordance with generally accepted accounting principles applied on a consistent basis and are fair and accurate; (d) the Corporation owns the assets recorded in the balance sheet appended in Schedule A free and clear of liens, charges, and encumbrances except as noted in Schedule E; (e) the Corporation has properly reported and is not in arrears of payment of any direct or indirect taxes or of any employee -related statutory deductions or remittances; (f) the corporate, business, accounting, tax, and employment records of the Corporation are complete in all material respects; (g) the business of the Corporation will not be adversely affected in any material respect in any way, whether by the Vendor or by any other person or cause whatsoever, up to the closing and the Vendor will not do anything before or after closing to prejudice the goodwill of the Corporation; (h) the Corporation will carry on business as usual until closing except that it will not declare any dividends or make any other distributions of capital or retained earnings or undertake or compromise any major contractual liabilities without the express written consent of the Purchaser;
(ci) The Vendor has there are no outstanding legal actions or judgments against the authority Corporation and the Corporation is not in default of any agreement to execute, deliver which the Corporation is a party and perform this Agreement;
(d) The Vendor is the sole legal and beneficial owner of the Shares;
(e) The Vendor is all such agreements are in good standing and has complied with the Corporation is entitled to all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or stated benefits in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalsuch agreements;
(hii) There is no Encumbrancethe Vendor has made full and fair disclosure in all material respects of any matter that could reasonably be expected to affect the Purchaser's decision to purchase the shares on the terms set out in this agreement;
(iii) the Vendor will execute such assignments, and there is no agreementconsents, arrangement clearances, or obligation assurances after closing, prepared at the Purchaser's expense, as the Purchaser considers necessary or desirable to create or give an Encumbrance, in relation to any assure the Purchaser of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any proper and effective completion of the Sharesthis agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Scottsdale Scientific Inc)
Representations and Warranties of Vendor. The Purchaser acknowledges that it is purchasing Vendor's interest in and to the Assets on an "as is, where is" basis, and is relying on the following representations and warranties provided by Vendor and that otherwise, Purchaser is not relying on any information provided to or on behalf of Purchaser by Vendor or any Third Party outside of such representations and warranties provided. Vendor hereby represents and warrants to the Purchaser that makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of twelve (12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it Vendor is a general partnership duly organized and organized, validly existing under and is authorized to carry on business in the laws Province in which the Lands are located. Vendor has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of its jurisdiction Vendor in and to the Assets according to the true intent and meaning of incorporation; andthis Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite actions and will not result in any violation of, be in conflict with or constitute a default under any partnership agreement, or other governing document to which Vendor, is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has the authority is party or by which Vendor is bound, nor under any judgement, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this AgreementVendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The Vendor is in good standing and has complied with all its legalno authorization or approval or other action by, audit, fiscal and filing requirements and no chargesnotice to or filing with, liens any governmental authority or encumbrances were registered regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or are capable of registration against exemptions from requirement therefor, previously obtained and currently in force or those to be received under the Vendor Competition Act (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.Canada);
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers' or receiver been appointed or any distress, execution or any other process been levied finders' fees in respect of the undertaking this Agreement or the assets of the Vendor transaction to be effected by it for which Purchaser shall have any obligation or any part thereof.liability;
(g) The entering into this Agreement Vendor is not a non-resident within the meaning of section 116 of the Income Tax Act (Canada) and the interest of Vendor in and to the Assets does not and will not cause constitute all or substantially all the Vendor to be in breach property of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalVendor;
(h) There other than Permitted Encumbrances, (i) Vendor has not alienated or encumbered the Assets or any part or portion thereof, (ii) Vendor is no Encumbrancenot aware of having committed any act or omission whereby the interest of Vendor in and to the Assets or any part or portion thereof may be cancelled or determined, and (iii) the Assets are now free and clear of all liens, royalties, conversion rights, net profits interests and other claims of Third Parties, created by, through or under Vendor;
(i) to the best of the knowledge, information and belief of Vendor, no suit, action or other proceeding before any court or governmental agency has been commenced against Vendor or has been threatened against Vendor, which might result in a material impairment or loss of the interest of Vendor in and to the Assets or which might otherwise materially and adversely affect the Assets;
(j) to the best of its knowledge, information and belief, all amounts due and payable to Third Parties prior to the date hereof and pertaining to the Assets have been fully paid, including without limitation (i) any and all ad valorem and property taxes, (ii) any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of the Leased Substances or any of them or the receipt of proceeds therefor, and (iii) all amounts due and payable in connection with Permitted Encumbrances;
(k) except as may be set out in Schedule "B", there are no Take or Pay Obligations;
(l) in respect of the Assets, except in connection with the AFE's, there are no financial commitments of Vendor which are over $25,000.00 (Vendor's share) and are due as of the date hereof or which may become due by virtue of matters occurring or arising prior to the date hereof, other than usual operating expenses incurred in the normal conduct of operations;
(m) except for the Production and Marketing Contracts, Vendor is no agreementnot a party to and Vendor's interest in and to the Assets is not otherwise bound or affected by any production sales contracts, arrangement pertaining to the Leased Substances or obligation any of them which are not terminable on 45 days or less notice without penalty;
(n) Vendor is not aware of and has not received:
(i) any orders or directives specific to create the Assets or give an Encumbrancea portion thereof which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law specifically applicable to the Assets or a portion thereof only, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof;
(o) all material documents and agreements affecting the title to the Assets or production or revenue from the Assets will have been made available by Vendor to Purchaser by the Closing Time, with the exception of those contracts for the sale of Petroleum Substances which have a term equal to or less than thirty-one (31) days;
(p) to the best of Vendor's knowledge, where it has not operated the Assets, all abandonment and reclamation operations have been conducted by Third Parties in accordance with generally accepted oil and gas industry practice and material compliance with all applicable laws and regulations
(q) to the best of the knowledge of Vendor, all of the Xxxxx have been drilled and, if completed, completed, operated, produced, shut-in and suspended, as the case may be, in relation accordance with good oilfield practices and in material compliance with all applicable laws, rules and regulations associated with each such Well, in force and effect at the time of such completion, operation, production, shutting in, or suspension, and all costs associated with capital equipment on those xxxxx have been paid except for the AFEs;
(r) to any the best of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any knowledge of Vendor, all of the SharesFacilities have been operated in accordance with good oilfield practices and in compliance with all applicable laws, rules and regulations for each such Facility in force and effect from time to time for such operations and all costs of construction relative to those Facilities have been paid except to the extent of the AFEs;
(s) Vendor has made available to Purchaser all information within its possession and has not knowingly withheld any such information from Purchaser, relevant to the Assets;
(t) to the best of the knowledge of Vendor, Vendor is not in breach of any orders or directives and is not aware of any other laws or regulations of the Energy and Utilities Board (Alberta) ("AEUB") whereby such breach or laws and regulations would result in an undue delay or inability to register the transfer of well licences for the Xxxxx;
(u) in respect of activities related to the Assets which are ongoing as at the Effective Date, Vendor, where operator, holds all necessary permits and licences required for the completion of such activities, but may require further licences, permits, approvals and similar rights and privileges to operate the Assets after such completion is effected; and
(v) with respect to those Assets operated by Vendor, and to the best of Vendor's knowledge in respect of those Assets operated by third parties (including contract operators), all approvals, permits, certificates, licences, orders-in council or other actions required under environmental laws to own and operate the Assets have been obtained.
Appears in 1 contract
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):that:
(a) it Vendor is a company incorporated, duly organized and validly existing under the laws of its jurisdiction the State of incorporation; andNevada;
(b) all corporate action of Vendor is in good standing with respect to its filings required for the lawful and valid consummation of the transactions contemplated herein have been duly takenby applicable law;
(c) The Vendor is duly qualified to do business and is in good standing under the laws of the State of Nevada and in each other jurisdiction where it carries on business or holds assets to carry on that business, and hold those assets, and has all corporate power and authority to carry on its business as presently carried on;
(d) Vendor has the corporate power and authority to executeexecute and deliver this Agreement, deliver to complete all of the transactions contemplated hereby and to duly observe and perform all of its covenants and obligations herein set forth;
(e) this Agreement is, and the other documents and instruments required hereby will be, when executed and delivered by Vendor, the valid and binding obligations of Vendor, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
(f) Vendor owns good and marketable title to the Equipment free and clear of all Encumbrances, other than Permitted Encumbrances, and Vendor is in sole possession of, and has sole control of (except as set forth in or pursuant to the Contracts), the Assets;
(g) neither of the execution and delivery of this Agreement, the completion of the transactions contemplated hereby, nor the observance and performance by Vendor of its covenants and obligations herein set forth will:
(i) conflict with, or result in a breach of, or violate any of the terms, conditions or provisions of its articles of incorporation or bylaws;
(ii) constitute or result in a breach or default under any agreement, contract, lease, indenture, other instrument or commitment to which it is a party, or is subject or derives benefit from, other than under such agreements, contracts, leases, indentures, other instruments and commitments with respect to Vendor Authorizations that are required, pursuant to the terms of this Agreement, to be delivered to Purchaser on Closing;
(iii) will result in the creation of any Encumbrance of any kind or nature against or with respect to the Assets (other than Encumbrances created pursuant to this Agreement); or
(iv) require any permissions, approvals, waivers or consents of any third Person, or any declarations, filing or registration with any court, governmental body or agency or other public or private body, entity, or Person, save and except for those comprised in Vendor Authorizations;
(h) to the Knowledge of Vendor, no authorization, approval, order, licence, permit or consent of any governmental authority, regulatory body or court, of Canada or the United States or any political subdivision thereof, and no registration with, declaration or notice to or filing by it with any such governmental authority, regulatory body or court is required in order for it to:
(i) incur the obligations expressed to be incurred by it in or pursuant to this Agreement;
(dii) The Vendor is the sole legal execute and beneficial owner of the Sharesdeliver all other documents and instruments to be delivered by it pursuant to this Agreement;
(eiii) The duly perform and observe the terms and provisions of this Agreement;
(iv) consummate the transactions contemplated by this Agreement; or
(v) render this Agreement legal, valid, binding and enforceable against Vendor, save and except for those comprised in Vendor Authorizations;
(i) all corporate authorizations have been obtained for the execution of this Agreement and for the performance of its obligations hereunder;
(j) with respect to the Contracts:
(i) each of them is in good standing and has complied with all its legalin full force and effect and is binding upon Vendor;
(ii) except as disclosed in writing to Purchaser, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 each of the Company’s Lawcovenants and conditions contained therein on the part of Vendor has been performed and observed by Vendor in all material respects;
(iii) there is no outstanding material dispute related thereto;
(iv) to the Knowledge of Vendor, Cap 113each other party to each of the Contracts has performed each material term, covenant, and condition of each of the Contracts which is to be performed by such other party at or before the date hereof;
(v) on obtaining Vendor Authorizations, Vendor will have all necessary approvals required for Vendor to lawfully assign the Contracts to Purchaser as amended contemplated by this Agreement; and
(the “Law”vi) Vendor is not to its Knowledge, in breach of or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged default under any term or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach condition of any of the terms Contracts, except for such breaches or defaults, if any, of which Purchaser has been given notice and provisions when taken together with any similar breach or default, would not have a material adverse effect singularly or in the aggregate on the ownership of any agreement or arrangement or order or injunction of any Court or competent tribunalthe Contracts by Purchaser following the Closing Date;
(hk) There is no Encumbranceto the Knowledge of Vendor, and Vendor has not received notice of, or otherwise become aware of, any action, suit, claim or other proceeding commenced or pending before any court or governmental commission, department, board, authority or other administrative agency or officer, that challenges Vendor's rights to any or all of the Assets;
(l) the Contracts represent all of the material agreements, contracts, leases, rights, other instruments or commitments which Vendor has entered into in connection with the Assets that are currently in force; and
(m) except as provided herein, there is no written or oral agreement, arrangement option, understanding or obligation to create commitment, or give any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an Encumbranceagreement, in relation to option or commitment, for the purchase or other acquisition from the Vendor of any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to Assets, or any of the Sharesrights or interest therein.
Appears in 1 contract
Representations and Warranties of Vendor. The To induce the Purchaser to enter into and complete the transactions contemplated by this Agreement, the Vendor hereby represents and warrants to the Purchaser warrants, as representations and warranties that the following is true, accurate are true and not misleading correct as at the date hereof and that will be true and correct on the Closing Date as if such representations and warranties were made on the Closing Date (except insofar as such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date or period) that:
a) the Vendor:
i) is a company duly incorporated under the federal laws of Canada and is not a reporting company or reporting issuer under any laws of its incorporation or extra-provincial registration;
ii) is duly organized, validly exists and is in good standing with respect to the filing of its annual reports;
iii) is registered in and in good standing with respect to the filing of annual reports in each jurisdiction in which the nature of the business conducted by it or the property owned or leased by the Vendor makes such qualification necessary; and
iv) has the full power, authority, right and capacity to own and dispose of the Purchased Assets, to execute and deliver this Agreement, to complete the transactions contemplated hereby and to duly observe and perform all of its covenants and obligations herein set forth;
b) this Agreement has been duly and validly executed and delivered by the Vendor and constitutes a legal, valid and binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, except as may be limited by laws of general application affecting the rights of creditors;
c) neither the execution nor the delivery of this Agreement Agreement, or the other agreements and instruments contemplated hereby, nor the completion of the transactions contemplated hereby will:
i) constitute or result in the breach of or default under any terms, provisions or conditions of, or conflict with, violate or cause any, or give to any person or Governmental Authority any right of, after the giving of a notice or lapse of time or otherwise, acceleration, termination or cancellation in or with respect to any of the following:
(immediately before ClosingA) any constating documents, charter documents or by-laws of the Vendor or any resolution of directors or shareholders of the Vendor;
(B) any indenture, mortgage, deed of trust, agreement, contract, lease, franchise, certificate, consent, permit, license, authority, registration or other instrument or commitment to which the Vendor is deemed to warrant a party or is subject, or by which it is bound or from which it derives benefit or which is required or desirable for the conduct in the usual and represent to the Purchaser that each ordinary course of the following is true, accurate and not misleading by reference to operation of the facts and circumstances as at Closing):
(a) it is duly organized and validly existing under the laws of its jurisdiction of incorporationBusiness; and
(bC) all corporate action any law, judgment, decree, order, injunction, rule, statute or regulation of any court, arbitrator or Governmental Authority by which the Business, the Purchased Assets or the Vendor required for is subject;
ii) result in the lawful creation of any Encumbrance on any of the Purchased Assets;
iii) result in any fees, duties, Taxes, assessments or other amounts relating to any of the Purchased Assets becoming due or payable, other than provincial sales or social service tax and valid consummation of goods and services tax payable by the Purchaser in connection with the transactions contemplated herein have been duly takenhereby; or
iv) enable any employee or former employee of the Vendor to make any claims or assert any rights against the Purchaser under any employment standards or similar legislation governing employees of the Vendor;
(cd) The no authorization, approval, order, license, permit, consent, certificate or registration of any Governmental Authority, court or arbitrator, and no registration, declaration or filing by the Vendor has with any Governmental Authority, court or arbitrator, is required in order for the authority Vendor:
i) to execute, deliver and perform incur the obligations expressed to be incurred by the Vendor in or pursuant to this Agreement;
(dii) The to execute and deliver all other documents and instruments to be delivered by the Vendor pursuant to this Agreement;
iii) to duly perform and observe the terms and provisions of this Agreement; or
iv) to render this Agreement legal, valid, binding and enforceable;
e) Schedule H accurately sets out a list of all DTA Asset Subscribers and SMATV Asset Subscribers as at March 31, 2001;
f) the Vendor maintains insurance in force against loss on such of the Purchased Assets and against such risks and to such limits as is in accordance with prudent business practices prevailing in the industry in which the Business is involved and having regard to the location, age and character of the Purchased Assets and has complied fully with all requirements of such insurance, including the prompt giving of any notice of any claim or possible claim thereunder;
g) the Vendor has not, directly or indirectly, sold transferred, disposed of, mortgaged, pledged, charged or leased any of the Purchased Assets;
h) the Vendor has not, directly or indirectly, engaged or entered in any transaction or made any disbursement or assumed or incurred any liability or obligation or made any commitment to make any expenditure which might materially and adversely affect any of the Purchased Assets;
i) no action, suit, judgment, investigation, inquiry, assessment, reassessment, litigation, determination or administrative or other proceeding or arbitration before or of any court, arbitrator or Governmental Authority or dispute with any Governmental Authority is in process, or, to the knowledge of the Vendor, pending or threatened, against or relating to the Vendor, the Business or any of the Purchased Assets, or affecting the right of the Vendor to enter into this Agreement or perform its obligations hereunder and no state of facts exists which could constitute the basis therefor;
j) the Vendor has not used the Business or any of the Purchased Assets, or permitted them to be used, to generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process Hazardous Substances, except in compliance with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, including all environmental, health and safety statutes and regulations, and to the best of the Vendor's knowledge, neither has any lessee, prior owner or other person;
k) the Purchased Assets and the Business comply with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, and none of the Purchased Assets or the Business is subject to any judicial or administrative proceeding alleging the violation of any law, judgment, decree, order, injunction, rule, statute or regulation;
l) all licenses, consents, permits, authorities, certificates and registrations which are required for the ownership and use of the Purchased Assets in the usual and ordinary course of the Business have been obtained, are validly issued, are in full force and effect and are in good standing and no notice of breach or default or defect in respect of the terms thereof has been received by the Vendor and the Vendor is not aware of any matters which could give rise to such notice;
m) Schedules A, B, C, D, E, F, J and K are accurate lists of the Purchased Assets, and the assets described and listed in the Schedules comprise all of the Purchased Assets;
n) the Vendor is the sole legal and beneficial owner of and has good and marketable title to the SharesPurchased Assets free and clear of all Encumbrances and none of the Assets is in the possession of or under the control of any other person;
o) all tangible rights, assets and properties comprising the Purchased Assets are free from material defect, are in good condition and repair and (ewhere applicable) The are in proper working order, having regard to the use and age thereof;
p) except for an alleged breach by the Vendor of an access agreement between the Vendor and IC Funding Corp. dated July 27, 2000, there has not been any default or breach of any term, condition, provision or obligation to be performed under any agreement forming part of the Purchased Assets, either by the Vendor or the other party thereto, and each agreement is in good standing and has complied with all its legalin full force and effect, auditunamended, fiscal and filing requirements and no charges, liens on or encumbrances were registered or are capable of registration against before the Closing Date the Vendor will have paid to all persons entitled thereto all amounts (either with including interest and penalties) which are due and owing by the Registrar of Companies by virtue of section 90 Vendor up to and including the Closing Date: i) under the building owner access agreements and other agreements forming part of the Company’s LawPurchased Assets, Cap 113, as amended (the “Law”and ii) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of acquisition by the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(hPurchased Assets other than acquisitions from the Purchaser; q) There is no Encumbranceexcept for this Agreement, and there is no written, oral or implied agreement, arrangement option, understanding or obligation to create commitment or give an Encumbrance, in relation to any right or privilege capable of becoming any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to same, for the purchase from the Vendor of any of the Shares.Purchased Assets;
Appears in 1 contract
Samples: Asset Purchase Agreement (Mdu Communications International Inc)
Representations and Warranties of Vendor. The Purchaser acknowledges that it is purchasing the Purchased Interest on an "as is, where is" basis, without representation and warranty except as hereinafter set forth and without reliance on any information provided to or on behalf of Purchaser by Vendor hereby represents or any Third Party, except that and warrants subject in all instances to the Purchaser that Permitted Encumbrances or any matter disclosed in any of the Schedules hereto and upon compliance with the provisions of Article 3. Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of one (1) year from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Adjustment Date:
(a) it Vendor is a corporation duly organized and validly existing under the laws of its the jurisdiction of incorporation; andincorporation of Vendor, is duly registered to carry on business in the Province in which the Lands are located, and now has good right, full power and absolute authority to sell, assign, transfer, convey and set over Purchased Interest in and to the Assets according to the true intent and meaning of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite corporate and directors' actions and will not result in, any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which Vendor is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has the authority is party or by which Vendor is bound, nor under any judgment, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this AgreementVendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The Vendor is in good standing and has complied with all its legalother than the Regulatory Approvals, auditno authorization or approval or other action by, fiscal and filing requirements and no chargesnotice to or filing with, liens any governmental authority or encumbrances were registered regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or are capable exemptions from requirement therefore, previously obtained and currently in force; (0 Vendor has not alienated or encumbered the Assets or any part or portion thereof (other than as disclosed herein), Vendor has not committed and is not aware of registration against there having been committed any act or omission whereby the interest of Vendor (either with in and to the Registrar Assets or any part or portion thereof may be cancelled or determined, and except for Permitted Encumbrances, Security Interests which shall be discharged or released on or prior to the Closing Date and the Security Interests in favour of Companies by virtue Computershare Trust Company of section 90 Canada or other indenture trustee in its capacity as indenture trustee under the trust indenture dated November 6, 2009, between Nordic, ComputershareTrust Company of Canada providing for the Company’s Lawissuance of convertible secured debentures, Cap 113, as amended (the “Law”) or in the Vendor’s register principal aggregate amount of charges by virtue of section 99 of $497,000, and the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed Toronto Dominion Bank, for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied which "no interest" letters will be delivered at Closing in respect of the undertaking Purchased Interest, the Assets are now free and clear of all Security Interests, liens, royalties, conversion rights and other claims of Third Parties, created by, through or the assets of the under Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the of which Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalhas knowledge;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alberta Star Development Corp)
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it Notwithstanding anything to the contrary contained in this Agreement, VENDOR represents, warrants and covenants to Enterprise Customer that: (i) the VENDOR Service is duly organized fully compliant with all Applicable Laws of the VENDOR Countries governing the VENDOR Service (but, without limiting VENDOR's obligations, representations, warranties or covenants set forth elsewhere in this Agreement or the I2 VENDOR Agreement, the representations, warranties and validly existing under covenants referenced in this Section 6.4(a)(i) are not meant to apply to laws whose application is triggered because of the laws specific content of its jurisdiction the Enterprise Customer Data) and, (ii) the Deliverables and/or VENDOR, as applicable, are and will remain fully compliant with all of incorporation; andthe requirements set forth on Exhibit 6.4(a) (annexed hereto and made a part hereof), which have been approved by VENDOR pursuant to the procedures set forth in the I2 VENDOR Agreement.
(b) all corporate action of Vendor required VENDOR warrants to Enterprise Customer that the VENDOR Service will perform in accordance with the applicable Service Level Commitment. Such limited warranty is for the lawful and valid consummation duration of the transactions contemplated herein have been duly takenTerm, subject to the notice requirements in the Service Level Commitment. If VENDOR fails to meet such limited warranty and Enterprise Customer notifies VENDOR within
(i) ninety (90) days of VENDOR's posting notice of such failure on VENDOR's website if VENDOR does post notice of such failure, or (ii) ninety (90) days after such failure where VENDOR does not post notice of such failure on its website, VENDOR shall then provide the remedies identified in Exhibit B (the “Service Level Commitment”) for the affected VENDOR Service(s), which, along with Sections 9.3 and 9.8 if applicable, will be Enterprise Customer’s sole and exclusive remedies for breach of such limited warranty, unless other remedies are required to be provided under Applicable Law. Notwithstanding the foregoing, however, such limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the date of VENDOR's first delivery of the VENDOR Software to Enterprise Customer;
(ii) the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this Agreement or the Documentation that are caused other than by VENDOR (which includes Contractors/Agents);
(iii) the limited warranty does not apply to free, trial, pre-release, or beta products or services; and,
(iv) the limited warranty does not apply to problems caused by Enterprise Customer’s failure to meet the minimum system requirements provided by the VENDOR to Enterprise Customer from time to time so long as Enterprise Customer receive advance notice from VENDOR of such minimum system requirements and such minimum system requirements are the same as are applicable to all of VENDOR's commercial and enterprise customers. OTHER THAN THE WARRANTIES SET FORTH IN THIS SECTION 6.4 AND IN SECTION 6.1 OF THIS AGREEMENT, NEITHER VENDOR NOR ANY OTHER PERSON PROVIDES ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. VENDOR DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS CONCERNING THE DELIVERABLES AND ANY OTHER LICENSES, PRODUCTS OR SERVICES OF VENDOR OR ITS SUPPLIERS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, COURSE OF DEALING OR USAGE OF TRADE. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM. VENDOR AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY OF THE DELIVERABLES FOR USE FOR ENTERPRISE CUSTOMER’S PURPOSES, OR THE DELIVERABLES COMPLIANCE WITH ANY LEGAL, REGULATORY AND/OR OTHER REQUIREMENTS APPLICABLE TO ENTERPRISE CUSTOMER, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
(c) The Vendor has the authority to executeFOR THE AVOIDANCE OF DOUBT, deliver and perform this Agreement;ENTERPRISE CUSTOMER IS NOT PROVIDING ANY DELIVERABLES OR ANY OTHER LICENSES, PRODUCTS OR SERVICES UNDER THIS AGREEMENT AND IS NOT A SUPPLIER OF VENDOR, AND ENTERPRISE CUSTOMER MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT, CONCERNING THE DELIVERABLES AND ANY OTHER LICENSES, PRODUCTS OR SERVICES OF VENDOR OR ITS SUPPLIERS.
(d) The Vendor is For the sole legal purpose of further clarification, and beneficial owner notwithstanding anything to the contrary express or implied in this Agreement, Enterprise Customer acknowledges that all references, representations, warranties, and covenants made in this Agreement (including in any Exhibits attached hereto), whether express or implied, concerning in any way VENDOR and/or any of VENDOR's products or services, including, without limitation, the Shares;
(e) The Vendor is in good standing Deliverables, are made by VENDOR alone and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies not by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in conjunction with Enterprise Customer. Enterprise Customer shall Users inform End that the Vendor’s register of charges Deliverables are being provided by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third partyVENDOR.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Samples: Enterprise Customer Agreement
Representations and Warranties of Vendor. The Vendor hereby represents Purchaser acknowledges that it is purchasing Vendor's interest in and warrants to the Assets on an "as is, where is" basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, except that Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of two (2) years from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it each Party comprising Vendor is a corporation duly organized and validly existing under the laws of its the jurisdiction of incorporation; andincorporation of such Party, is authorized to carry on business in the State in which the Lands are located, and now has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of Vendor in and to the Assets according to the true intent and meaning of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite corporate and directors' actions and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which any Party comprising Vendor is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which any Party comprising Vendor has the authority is party or by which any Party comprising Vendor is bound, nor under any judgment, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this Agreementany Party comprising Vendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of each Party comprising Vendor enforceable against each Party comprising Vendor in accordance with their terms;
(e) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance of this Agreement by each Party comprising Vendor, other than authorizations, approvals or exemptions from requirement therefor, previously obtained and currently in force;
(f) Vendor has not incurred any obligation or liability, contingent or otherwise, for brokers' or finders' fees in respect of this Agreement or the transaction to be effected by it for which Purchaser shall have any obligation or liability;
(g) each Party comprising Vendor is sophisticated in the sole legal evaluation, purchase, and beneficial owner ownership of securities for investment, and in making its decision to enter into this Agreement and to consummate the transactions contemplated herein, each Party comprising Vendor (i) has relied or shall rely on its own independent investigation and evaluation of the Shares and Warrants and MegaWest, and (ii) has satisfied itself as to the investment in the Shares;
(eh) The Vendor has not alienated or encumbered the Assets or any part or portion thereof, Vendor has not committed and is not aware of there having been committed any act or omission whereby the interest of Vendor in and to the Assets or any part or portion thereof may be cancelled or determined, and the Assets are now free and clear of all liens, royalties, conversion rights and other claims of Third Parties, created by, through or under Vendor or of which Vendor has knowledge;
(i) none of the interest of Vendor in and to the Assets is subject to any preferential, pre-emptive or first purchase rights, created by, through or under Vendor or of which Vendor is in good standing and has complied with all its legalaware, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies that become operative by virtue of section 90 this Agreement or the transaction to be effected by it;
(j) Vendor has not received notice from any Third Party claiming an interest in and to the Assets adverse to the interest of Vendor and Vendor has no reason to believe that any such claim may be made;
(k) Vendor has not failed to comply with, perform, observe or satisfy any term, condition, obligation or liability which has heretofore arisen under the provisions of any of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution Title Documents or any other process agreements and documents to which the Assets are subject;
(l) Vendor has not received notice of default and is not, to the knowledge, information and belief of Vendor, in any default under any obligation, agreement, document, order, writ, injunction or decree of any court or of any commission or administrative agency, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets;
(m) no suit, action or other proceeding before any court or governmental agency has been levied commenced against Vendor or, to the knowledge, information and belief of Vendor, has been threatened against Vendor or any Third Party, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets or any rights to, and rights to enter upon, use or occupy the surface of any lands which are or may be used to gain access to or otherwise use the Petroleum and Natural Gas Rights and the Tangibles, or either of them;
(n) all amounts due and payable to Third Parties prior to the date hereof and pertaining to the Assets have been fully paid, including without limitation (i) any and all ad valorem and property taxes, (ii) any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of the Leased Substances or any of them or the receipt of proceeds therefor, and (iii) all amounts due and payable in connection with Permitted Encumbrances;
(o) in respect of the undertaking Assets, there are no financial commitments of Vendor which are due as of the date hereof or which may become due by virtue of matters occurring or arising prior to the date hereof;
(p) in respect of the Assets that are operated by Vendor, if any, Vendor holds all valid licenses, permits and similar rights and privileges that are required and necessary under applicable law to operate the Assets as presently operated;
(q) any and all operations of Vendor, and to the knowledge, information and belief of Vendor, any and all operations by Third Parties, on or in respect of the Assets, have been conducted in accordance with good oil and gas industry practices and in material compliance with all applicable laws, rules, regulations, orders and directions of governmental and other competent authorities;
(r) no obligations have accrued pursuant to the Title Documents that may be satisfied by the drilling of a well, the payment of compensatory royalty or the assets surrender of some or all of the Vendor interests granted, reserved or any part thereof.otherwise conferred pursuant to the Title Documents, other than obligations that have been satisfied (by means other than by the payment of compensatory royalties) or have been permanently waived;
(gs) The entering into this Agreement does there are no active area of mutual interest provisions in any of the Title Documents or other agreements or documents to which the Assets are subject;
(t) Vendor is not aware of and will has not cause received:
(i) any orders or directives which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the Vendor Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to be in the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunaldate hereof;
(hu) There Vendor is no Encumbrancenot a party to and Vendor's interest in and to the Assets is not otherwise bound or affected by any (i) production sales contracts pertaining to the Leased Substances or any of them that cannot be terminated on notice of 31 days or less (without an early termination penalty or other cost), (ii) gas balancing or similar agreements pertaining to the Leased Substances or any of them, (iii) agreements for the transportation, processing or disposal of the Leased Substances or any of them or substances produced in connection with the Leased Substances or any of them, (iv) agreements for the contract operation by a Third Party of the Assets or any of them, and there is no agreement(v) agreements to provide transportation, arrangement processing or obligation to create disposal capacity or give an Encumbrance, in relation service to any Third Party;
(v) there are no Take or Pay Obligations; and
(w) Vendor has made diligent inquiries and searches for material documents and information relating to the Assets and for all information reasonably required to make the representations and warranties contained in this Agreement not misleading in light of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Sharescircumstances.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Megawest Energy Corp.)
Representations and Warranties of Vendor. The Purchaser acknowledges that it is purchasing the Sold Assets on an “as is, where is” basis, without representations and without reliance on any information provided to or on behalf of Purchaser by Vendor hereby represents or any third party, except that and warrants subject in all instances to anything disclosed in the Purchaser that Agreement and Schedules, Vendor makes the following is true, accurate representations and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed warranties to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Purchaser:
(a) it Vendor is a body corporate duly organized and validly existing under the laws of its jurisdiction of incorporation; and, is authorized to carry on business in the Province of Alberta and now has good right, full power and absolute authority to bargain, sell, transfer, assign and convey its interest in and to the Sold Assets for the purposes and in the manner herein provided for according to the true intent and meaning of this Agreement.
(b) all corporate action The execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly taken;and validly authorized by any and all requisite corporate actions and will not result in any violation of, or be in conflict with, or constitute a default under any charter, bylaw or governing document to which Vendor is bound.
(c) The execution, delivery and performance of this Agreement will not result in any violation of, or be in conflict with, or constitute a default under any term or provision of any agreement or instrument to which Vendor has the authority is party or by which it is bound, nor under any Regulations applicable to execute, deliver and perform this Agreement;Vendor.
(d) The This Agreement and other documents delivered in pursuance hereof constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Shares;enforceable against Vendor in accordance with their terms.
(e) The Other than the Permitted Encumbrances, Vendor has not committed and is not aware of there having been committed any act or omission whereby its title to the Petroleum and Natural Gas Rights may be cancelled or determined, nor has Vendor encumbered or alienated the same or any interest therein other than as set out in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the Schedule “LawA”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made Subject to the rents, covenants, conditions and stipulations in the Leases reserved and contained and on the lessee’s or petition presented or resolution passed holder’s part thereunder to be paid, performed and observed and subject to the Permitted Encumbrances, Purchaser may enter into and upon, and hold and enjoy the Petroleum and Natural Gas Rights for the winding up residue of their respective terms and all renewals or extensions thereof as to the interests hereunder assigned for its own use and benefit without any lawful interruption of or by Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking person claiming by, through or the assets of the Vendor or any part thereofunder Vendor.
(g) The entering into Other than the Permitted Encumbrances, the Sold Assets are free and clear of all royalty burdens, liens, penalties, conversion rights and other claims of third parties, created by, through or under Vendor or of which Vendor has knowledge.
(h) Vendor has not incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of this Agreement does transaction for which Purchaser shall have any obligation or liability.
(i) To the Vendor’s knowledge, Vendor has not and will not cause failed to comply with, perform, observe or satisfy any material term, condition, obligation or liability which has heretofore arisen under the Vendor to be in breach provisions of any of the terms Leases and provisions other agreements to which the Sold Assets are subject, that would or is likely to have a material adverse effect on the Sold Assets.
(j) Vendor is not aware of any defaults, has not received notice of default and is not, to its knowledge, in any material default under:
(i) any order, writ, injunction or decree of any court or of any commission or administrative agency affecting the Sold Assets; or
(ii) any agreement or arrangement obligation by which it is bound or order to which it is subject affecting the Sold Assets.
(k) To the Vendor’s knowledge, no suit, action or injunction other proceeding has been commenced against Vendor before any court or Regulatory Authority which might result in impairment or loss of Vendor’s title to the Sold Assets or which might otherwise materially adversely affect the Sold Assets.
(l) To the Vendor’s knowledge, all ad valorem, property, production, severance and similar taxes and assessments based upon or measured by the ownership or production of Petroleum Substances from the Lands or the receipt of proceeds therefrom payable by Vendor have been properly paid.
(m) To the Vendor’s knowledge, there are no financial commitments which are now outstanding or due or may hereafter become due in respect of the Sold Assets or operations in respect thereof other than usual operating expenses incurred in the normal conduct of operations.
(n) To the Vendor’s knowledge, there are no Take or Pay Obligations affecting the Sold Assets.
(o) To the Vendor’s knowledge, except as otherwise expressly noted in Schedule “A”, the Sold Assets are not subject to reduction by virtue of the conversion or other alteration of the interest of any Court or competent tribunal;third party under existing agreements pertaining to the Sold Assets.
(hp) There is no EncumbranceTo the Vendor’s knowledge, Vendor has paid or has caused to be paid within the applicable time limits all relevant deposits, rentals, and royalties and has performed and observed, or caused to be performed and observed, all obligations and covenants required to keep the Leases and all documents of title respecting the Lands and any of them in full force and effect.
(q) To the Vendor’s knowledge, there are no authorities for expenditure, mail ballots, outstanding cash calls, or any other authorization of expenditure under the Leases pertaining to the Sold Assets for the conduct of an operation or the accrual of a financial obligation.
(r) The Sold Assets are legally and validly assignable by Vendor to the Purchaser and are not subject to any pre-emptive or Preferential Right of Purchase by any third party and, if so, will be served pursuant to clause 4.3.
(s) Vendor is no not aware of, nor has it received:
(i) any orders or directives under the Regulations relating to environmental matters which remain outstanding in any material respect as of the date of this agreement, arrangement and that require any further work, repairs, construction or obligation capital expenditures with respect to create the Sold Assets, where such orders and directives have not been complied with in all material respects; or
(ii) any demand or give an Encumbrancenotice issued with respect to the breach of any environmental, in relation health or safety law applicable to any the Sold Assets, including respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date of this Agreement.
(t) Vendor is not a non-resident within the meaning of Section 116 of the SharesIncome Tax Act (Canada). No person has claimed Apart from the foregoing representations and warranties, the Vendor makes no representation or warranty regarding its title to be entitled the Sold Assets or as to an Encumbrance in relation to the merchantability or fitness for any purpose of any part of the SharesSold Assets. The Purchaser acknowledges that it has made its own investigations and inquiries regarding the value and fitness of the Sold Assets and the producibility of the Petroleum Substances therefrom and that the Purchaser has not relied on any factual representations with regard thereto made to it by the Vendor.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that makes the following is true, accurate representations and not misleading at the date warranties to and in favour of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Purchaser:
(a) it Vendor is a corporation duly organized formed and validly existing under the laws of its jurisdiction the Province of incorporation; andAlberta and registered to carry on business in the jurisdictions in which the Assets are situate, except where failure to so register would not adversely affect the ability of Vendor to complete the Transaction on the basis contemplated in this Agreement;
(b) all corporate action the execution, delivery and performance of this Agreement by Vendor required for the lawful and valid consummation of the transactions contemplated herein have has been duly takenand validly authorized by all requisite action on the part of its directors, officers or shareholders, as the case may be, and will not result in any violation of, be in conflict with, or constitute a default under, the constating documents of Vendor;
(c) The the execution, delivery and performance of this Agreement by Vendor has will not result in any violation of, be in conflict with or constitute a default under: (i) any term or provision of any agreement or instrument to which Vendor is party or by which Vendor is bound; or (ii) any Applicable Law that is specifically applicable to Vendor; except, in either case, where such conflict or default would not adversely affect the authority ability of Vendor to execute, deliver and perform complete the Transaction on the basis contemplated in this Agreement;
(d) The this Agreement and all other agreements delivered or to be delivered in connection herewith constitute, or when delivered shall constitute, valid and binding obligations of Vendor, enforceable against Vendor is the sole legal and beneficial owner of the Sharesin accordance with their respective terms;
(e) The Vendor is in good standing and has complied with all its legalno authorization or approval or other action by, audit, fiscal and filing requirements and no chargesnotice to or filing with, liens any Governmental Authority is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or encumbrances were registered exemptions previously obtained and currently in force or are capable of registration against to be obtained as and when required during the Vendor (either with Pre-Closing Period and the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.Competition Act Approval;
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers' or receiver been appointed or any distress, execution or any other process been levied finders' fees in respect of the undertaking this Agreement or the assets of the Vendor Transaction for which Purchaser shall have any obligation or any part thereof.liability;
(g) The entering into this Agreement does Vendor is not and will not cause a non-resident of Canada for the Vendor to be in breach purposes of any section 116 of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalIncome Tax Act (Canada);
(h) There Vendor is no Encumbrancea registrant in respect of GST under the Excise Tax Act (Canada);
(i) to Vendor's Knowledge, by the Closing Date Vendor or its representative shall have made available to Purchaser or its representatives, whether through the Data Room or otherwise, all relevant records, books, accounts, documents, files, information, materials and filings pertaining to the ownership of the Assets, including all of the relevant Title and Operating Documents and other agreements and documents comprising the Miscellaneous Interests, that are in Vendor's possession and control as at the execution of this Agreement for the purpose of Purchaser's due diligence review of Vendor's title to the Assets;
(j) Vendor has not received notice of any Claim, and to Vendor's Knowledge there are no unsatisfied judgments, Claims or threatened Claims, against Vendor in respect of or in connection with Assets or the operation thereof other than as disclosed in Schedule J;
(k) except for or pursuant to any Permitted Encumbrances: (i) Vendor has not alienated or encumbered the Assets or any part or portion thereof; and (ii) at the Closing Time the Assets shall be free and clear of all Encumbrances created by, through or under Vendor;
(l) to the extent pertaining to the Assets and to Vendor's knowledge (i) all Crown and lessor royalties; (ii) all ad valorem and property taxes, and (iii) all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of Petroleum Substances or any of them or the receipt of proceeds from the sale thereof; that became due and payable to Third Parties on or prior to the date of this Agreement have been fully paid, except, in each case, for amounts that are being disputed in good faith;
(m) there are no Take or Pay Obligations pertaining to the Assets;
(n) except in connection with the AFEs listed in Schedule D, and excluding operating expenses incurred in the normal conduct of operations of the Assets, as of the Effective Time, there are no AFEs or other financial commitments pertaining to the Assets under which individual expenditures in excess of $[redacted] are or may be required to be made by Purchaser by virtue of Closing, taking into account, when applicable, the application of Clause 2.7;
(o) other than as disclosed in Schedule B, the Assets are not bound by any contract or other arrangement for the sale, gathering, processing, storage, compression, transmission, fractionation of, or the provision of any similar services in respect of, any Petroleum Substances, and Vendor is not a party to any such contract or arrangement for which Purchaser will become liable as a consequence of Closing, except for, in each case, the Production and Marketing Contracts or contracts or arrangements which are terminable without penalty on 92 days or less notice;
(p) other than as disclosed in Schedule J, Vendor has not received and to Vendor's Knowledge:
(i) there are no orders or directives from Governmental Authorities that are specific to the Assets or any portion thereof, relate to Environmental Liabilities and require any work, repairs, construction or capital expenditures with respect to the Assets which have not been complied with in all material respects as of the date of this Agreement; and
(ii) there are no demands or notices issued by any Governmental Authority with respect to the breach of any Applicable Law relating to the Environment that are specifically applicable to the Assets or any portion thereof which remain outstanding in any material respect on the date of this Agreement;
(q) to Vendor’s knowledge the Vendor has not received notice from Governmental Authorities to plug and abandon any Well which has not been plugged and abandoned in accordance with Applicable Law;
(r) each Well listed in Part 2 of Schedule A for which Vendor is operator has been, and, to Vendor's Knowledge, each Well listed in Part 2 of Schedule A for which it is not operator has been, operated in all material respects in accordance with good oil and gas field practices and the material requirements of Applicable Law;
(s) the Tangibles for which Vendor is operator have been, and, to Vendor's Knowledge, the Tangibles for which it is not operator have been, operated in all material respects in accordance with good oil and gas field practices and the material requirements of Applicable Law;
(t) except as may be identified in Schedule F, to Vendor's Knowledge the Assets are not subject to any ROFRs;
(u) Vendor's "Licensee Liability Rating" or "LLR", as determined by the ERCB and/or pursuant to ERCB rules, regulations, guidelines, directives, interim directives and policies, is not less than 1.0 and will not be less than 1.0 following Closing and the transfer of the Assets as contemplated in this Agreement and Vendor is not aware of any fact or circumstance that would prevent or delay the transfer of any Permits relating to or forming part of the Assets as contemplated in this Agreement;
(v) except as may be identified in Schedule L, to Vendor's Knowledge there are no active area of mutual interest provisions in any of the Title and Operating Documents or other agreements or documents to which the Assets are subject;
(w) subject to the Permitted Encumbrances, after Closing Purchaser shall be entitled to hold and enjoy the Assets without any lawful interruption by Vendor or any Person claiming by, through or under it;
(x) Vendor has not received notice of default and is not, to Vendor's Knowledge, in any default under any obligation, agreement, document, order, writ, injunction or decree of any court or of any Government Authority or administrative agency, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise materially adversely affect the Assets;
(y) excepting production limits of general application in the oil and gas industry, none of the Wxxxx is subject to production or other penalties imposed by any Applicable Laws;
(z) except as set forth in Schedule A or Schedule J, as at the date hereof it has not received any written notice that any of the Leases are subject to any accrued drilling or offset obligations which have not been satisfied or permanently waived;
(aa) it has paid or caused to be paid all relevant Crown royalties, freehold deposits and rentals and freehold and overriding royalties in respect to the Assets which have become due and payable prior to the date hereof which it is directly obligated to pay;
(bb) except as set forth in Schedule A, none of the Wxxxx is subject to a production or similar penalty arising under a contract as a result of an election by it not to participate in a drilling or other operation;
(cc) except to the extent which would not have a material adverse effect on the Assets as a whole: (i) all permits, licenses, approvals, and authorizations required in respect of the Assets which it operates and to the Vendor’s Knowledge, all permits, licenses, approvals, and authorizations required in respect of the Assets for which it does not operate, have been issued or obtained; and (ii) there is no agreementmaterial breach or violation thereof; and
(dd) subject to the rents, arrangement conditions and stipulations in the Title and Operating Documents and to the Permitted Encumbrances, Purchaser may upon Closing enter into and upon, hold and enjoy the Assets for the residue of their respective terms and all renewals or obligation to create extensions thereof for Purchaser's own use and benefit, without any lawful interruption of or give an Encumbrance, in relation to by Vendor or any Affiliate of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the SharesVendor.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Advantage Oil & Gas Ltd.)
Representations and Warranties of Vendor. The In addition to the representations and warranties of Vendor hereby set forth elsewhere in this Agreement, Vendor represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances Lowe’s as at Closing):
follows: (a) it Vendor is a corporation, partnership or limited liability company (as applicable) duly organized organized, validly subsisting or existing and validly existing in good standing under the laws of its the jurisdiction of incorporation; and
(b) all corporate action of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly taken;
(c) The Vendor has the authority to execute, deliver and perform this Agreement;
(d) The its organization. Vendor is the sole legal duly qualified or licensed to conduct business and beneficial owner of the Shares;
(e) The Vendor is in good standing under the laws of each jurisdiction where such qualification is required. Vendor has the full right, power and authority to enter into and perform its obligations under this Agreement and to conduct its business as now conducted and hereafter contemplated to be conducted and is in compliance with its Articles of Incorporation and Bylaws, Partnership Agreement or Limited Liability Company Agreement (as applicable). This Agreement has been duly executed and delivered by Vendor and constitutes a legal, valid and binding obligation of Vendor, which is enforceable against Vendor in accordance with its terms; (b) The execution, delivery and performance of this Agreement and all instruments and documents to be delivered by Vendor are within the Vendor’s corporate, partnership or limited liability company (as applicable) power and have been duly authorized by all necessary or proper action, including the consent of shareholders, partners or members (as applicable) if required; do not and will not contravene any provisions of the Vendor’s Articles of Incorporation or Bylaws, Partnership Agreement or its Limited Liability Company Agreement (as applicable); (c) Vendor has supplied and will continue to supply accurate and continuing information to Lowe’s and to Product end users, which relates to Product safety, whether oral or written, including but not limited to, information set forth on any Vendor Information Sheet, Item Set Up Sheet, International Vendor Set Up Sheet or other document provided to Lowe’s. Moreover, Vendor has signed or will sign a Lowe’s Vendor Information Sheet, and has complied with all its legal, audit, fiscal and filing other requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor norRequirements; (d) Vendor agrees that neither it nor its employees, has any administrator contractors and/or subcontractors are in a dual or receiver been appointed or any distress, execution or any other process been levied in respect joint employment relationship with Lowe’s regardless of the undertaking or the assets of the Vendor or any part thereof.
fact that Products and services are provided to Lowe’s under this Agreement; (ge) The entering into execution, delivery and performance of this Agreement does by Vendor shall not and will not cause result in the Vendor to be in breach of any of the terms and provisions of, or constitute a default under, or conflict with, or cause any acceleration of any agreement or arrangement or order or injunction obligation of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation Vendor to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.third-party;
Appears in 1 contract
Samples: Master Standard Buying Agreement
Representations and Warranties of Vendor. The Vendor hereby represents Purchaser acknowledges that it is purchasing Vendor's interest in and warrants to the Assets on an "as is, where is" basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, except that Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of twelve(12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Effective Date :
(a) it is duly organized Vendor has not alienated or encumbered the Assets or any part or portion thereof and validly existing the Assets are now free and clear of all royalty burdens, liens, penalties, conversion rights and other claims of Third Parties, created by, through or under the laws Vendor or of its jurisdiction of incorporation; andwhich Vendor has knowledge;
(b) all corporate no suit, action or other proceeding before any court or governmental agency has been commenced against Vendor or, to the knowledge, information and belief of Vendor, has been threatened against Vendor or any Third Party, which might result in impairment or loss of the interest of Vendor required for in and to the lawful Assets or which might otherwise adversely affect the Assets or any rights to, and valid consummation rights to enter upon, use or occupy the surface of any lands which are or may be used to gain access to or otherwise use the transactions contemplated herein have been duly takenWell;
(c) The Vendor has any and all operations of Vendor, and to the authority to executeknowledge, deliver information and perform this Agreementbelief of Vendor, any and all operations by Third Parties, on or in respect of the Assets, have been conducted in accordance with good oil and gas industry practices and in material compliance with all applicable laws, rules, regulations, orders and directions of governmental and other competent authorities;
(d) The Vendor is not aware of and has not received:
(i) any orders or directives which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the sole legal and beneficial owner Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law applicable to the SharesAssets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof;
(e) The Vendor is in good standing and has complied with made available to Purchaser all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or information in the Vendor’s register possession of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereofto which Vendor has access relevant to environmental damage or contamination or other environmental problems pertaining to the Assets.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Representations and Warranties of Vendor. The Purchaser acknowledges that it is purchasing the Assets on an “as is, where is” basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor hereby represents or any Third Party except that and warrants subject in all instances to the Permitted Encumbrances, ROFR’s, Accepted Matters and Conditions or any matter disclosed in any of the Schedules provided to the Purchaser that by the Vendor as part of the due diligence investigation, the Vendor hereby makes the following representations and warranties to and in favour of Purchaser:
(a) all information provided by the Vendor to the Purchaser is true, complete and accurate and not misleading in any respect as at the date of this Agreement Agreement;
(immediately before Closing, the b) Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it is a corporation duly organized and validly existing under the laws Applicable Law of its the jurisdiction of incorporation; and
(bincorporation of Vendor, is authorized to carry on business in the Province in which the White Map Area(s) all corporate action of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly takenare located;
(c) The Vendor has all requisite power and capacity to sell and convey the authority to execute, deliver and perform Assets in accordance with the provisions of this Agreement;
(d) The the execution, delivery and performance of this Agreement by Vendor has been duly and validly authorized by all requisite action on the part of Vendor and will not result in any violation of, be in conflict with, or constitute a default under, the constating documents or other governing documents to which the Vendor is the sole legal and beneficial owner of the Sharesbound;
(e) The the execution, delivery and performance of this Agreement by Vendor will not result in any violation of, be in conflict with or constitute a default under: (i) any term or provision of any agreement or instrument to which Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens party or encumbrances were registered by which Vendor is bound or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 relating to any of the Company’s Law, Cap 113, as amended Assets; or (the “Law”ii) any Applicable Law that is specifically applicable to Vendor or in the Vendor’s register of charges by virtue of section 99 any of the Law) and its shares have Assets; except, in either case, where such conflict or default would not been pledged or otherwise encumbered nor were they subject adversely affect the ability of Vendor to any charge or interest of any third party.complete the Transaction on the basis contemplated in this Agreement;
(f) No order has been made this Agreement and all other agreements delivered or petition presented to be delivered by Vendor in connection herewith constitute, or resolution passed for the winding up when delivered shall constitute, legal, valid and binding obligations of the Vendor, as applicable, enforceable against Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.accordance with their respective terms;
(g) The entering into no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by Vendor of this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalAgreement;
(h) There is no Encumbranceneither the aggregate value of the Assets nor the annual gross revenue from sales generated by them exceeds Ninety Three Million Dollars $93,000,000.00, in each case as determined in accordance with the Competition Act (Canada), R.S.C., 1985, c. C-34, as amended, and there the Notifiable Transactions Regulations (SOR/87-348) promulgated thereunder;
(i) Vendor has not incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of this Agreement or the Transaction for which Purchaser shall have any obligation or liability;
(j) Vendor is no agreement, arrangement not a non-resident of Canada for the purposes of section 116 of the Income Tax Act (Canada);
(k) except for or obligation to create or give an Encumbrance, in relation pursuant to any of Permitted Encumbrances:
(i) Vendor has not alienated or encumbered the Shares. No person has claimed to be entitled to an Encumbrance in relation to Assets or any of the Shares.part or portion thereof;
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Representations and Warranties of Vendor. The Vendor hereby represents Each of the Vendors jointly and warrants severally makes the following representations and warranties to the Purchaser, no claim in respect of which shall be made or be enforceable by the Purchaser that unless written notice of such claim, with reasonable particulars, is given by the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent Purchaser to the Purchaser that each Vendors within a period of twenty-four (24) months from the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it each Vendor is duly organized and validly existing under the laws of its jurisdiction of incorporation; andorganization, is authorized to carry on business in the jurisdiction in which the Lands are located, and now has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of such Vendor in and to the Assets according to the true intent and meaning of this Agreement;
(b) the execution, delivery and performance of this Agreement has been duly and validly authorized by any and all corporate requisite corporate, partnership, shareholders’ and directors’ actions with respect to each Vendor and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which such Vendor is bound;
(c) the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which the Vendors are party, by which the Vendors are bound or to which the Assets are subject, nor under any judgment, decree, order, statute, regulation, rule or license applicable to the Vendors;
(d) this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of each Vendor enforceable against each Vendor in accordance with their terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, and similar laws, as well as to principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(e) no authorization or approval or other action of Vendor by, and no notice to or filing with, any governmental authority or regulatory body exercising jurisdiction over the Assets is required for the lawful due execution, delivery and valid performance by the Vendors of this Agreement, other than authorizations, approvals or exemptions from requirements therefor, previously obtained and currently in force;
(f) none of the Vendors have incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of this Agreement or the transaction to be effected by it for which the Purchaser shall have any obligation or liability;
(g) except for the Permitted Encumbrances, the Assets are free and clear of all liens, mortgages, royalties, encumbrances, net profits interests, options, security interests or other burdens or adverse claims created by, through or under the Vendors and, to the knowledge of the Vendors, by Third Parties;
(h) there are no judgments and no claims, proceedings, actions or lawsuits in existence or, to the Vendors’ knowledge, contemplated or threatened against or with respect to the Assets;
(i) the sale of the Assets pursuant hereto is not subject to (i) any rights of first refusal which have not been waived by the holder thereof, or similar pre-emptive rights created by, through or under the Vendors or (ii) any other transfer restriction;
(j) as of the Closing Time, there are no AFEs, unit budget or similar financial commitments which have not already been disclosed and as are included in Schedule “E”, pursuant to which expenditures by the Purchaser in respect of the Assets are or may be required after the Closing Time; .
(k) to the Vendors’ knowledge, each of the Vendors has given the Purchaser access to all written information in its possession relating to Environmental Liabilities and Abandonment and Reclamation Obligations;
(1) none of the Vendors have received actual notice, written or oral, of:
(A) any material non-compliance in relation to the Assets with any law; or
(B) any claim in relation to the Assets by any Third Party of material Environmental Liabilities (including pollution) or material Abandonment and Reclamation Obligations;
(m) the Leases, Easements and Contracts are in full force and effect, and none of the Vendors is, and to the Vendors’ knowledge no other party is, in breach of any Lease Easement or Contract and to the Vendors’ knowledge no default exists thereunder;
(i) none of the Leases contain royalty provisions (other than those allowing a lessor the right to take in kind and other than royalties due to governmental entities) requiring the payment of royalty on any basis other than proceeds actually received by the lessee, (ii) there are no Leases that are subject to a fixed term of duration, (iii) there are no unfulfilled drilling obligations affecting the Leasehold Interests, other than provisions requiring optional drilling as a condition of maintaining or earning all or a portion of a Lease, (iv) all royalties, rentals and other payments due in respect of the Leases have been timely paid and all other conditions necessary to keep such properties and interests in full force and effect during their primary term, and thereafter if commercial production has been established thereon or on lands pooled therewith, have been fully performed; (v) except as otherwise noted on Schedule D, there are no limitations as to the depths covered or minerals to which the Leases to apply; and (vi) except as otherwise noted on Schedule D, there are no restrictions on the Purchaser’s ability to utilize the surface of the Leases, to conduct operations on the Leases, or to have access to the Leases that would have an adverse effect, individually or in the aggregate on the value of any of the Assets or on the Purchaser’s ownership or operation thereof;
(i) None of the Contracts subject all or any portion of the Assets to any tax partnership or to any obligation requiring a partnership income tax return to be filed under the application of Subchapter K of Chapter 1 of Subtitle A of the Code, or any similar state statute; (ii) none of the Contracts will subject the Purchaser to any area of mutual interest, non competition or similar provision restricting the Purchaser from independently conducting operations in any geographic area; and (iii) the Contracts include all contracts and agreement that are material to the ownership and operation of the Assets, as currently owned and operated;
(p) the Vendors have obtained all governmental permits, licenses and other authorizations required to own and operate the Assets; all such authorizations are in full force and effect; and to the Vendors’ knowledge no violations exist thereunder;
(q) all ad valorem, property, production, severance, sales, use, windfall profits and similar taxes and assessments based on or measured by the ownership of the Assets or the production of Hydrocarbons or the receipt of proceeds therefrom that have become due and payable with respect to the Assets have been, or will be, paid timely and all tax and information returns to tax authorities required to be filed with respect to the Assets have been, or will be, filed timely;
(r) the Vendors own and have the right to use without any limitations or restrictions (including without limitation restrictions related to transfers to, or use by, third parties), all technology, processes, maps, seismic records, shot points, field notes, interpretations and programs, geological and geophysical information and libraries included as part of the Assets and the consummation of the transactions contemplated herein have been duly takenby this Agreement will not alter or impair any such rights or breach any agreements with Third Party vendors or require payments of additional sums to such persons;
(cs) The Vendor none of the Vendors, their Affiliates nor anyone acting on their behalf has issued, sold or offered any security of the authority Purchaser to execute, deliver and perform this Agreement;
(d) The Vendor is any person under circumstances that would cause the sole legal and beneficial owner sale of the Shares;
(e) The Vendor is in good standing and has complied with all its legal, auditas contemplated by this Agreement, fiscal and filing to be subject to the registration requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113Securities Act of 1933, as amended (the “LawSecurities Act”);
(t) or each of the Vendors understands that the offering and sale of the Shares pursuant to this Agreement has not been registered under and is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof and Regulation D thereunder and each Vendor acknowledges that each certificate representing the Shares shall bear a legend substantially in the Vendor’s register of charges by virtue of section 99 following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AND MAY NOT BE SOLD TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE . WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL . (u) each of the LawVendors is an “accredited investor” (as defined in Regulation D under the Securities Act) and has truthfully and accurately completed the certificate attached hereto as Schedule “G” indicating the basis on which it is representing its shares have status as an “accredited investor;”
(v) each of the Vendors is acquiring the Shares to be acquired hereunder for its own account, for investment and not been pledged with a view to the public resale or otherwise encumbered nor were they subject to any charge or interest distribution thereof in violation of any third party.securities law; and
(fw) No order each Vendor (A) has been made furnished with or petition presented or resolution passed for the winding up has had full access to all of the Vendor norinformation that it considers necessary or appropriate to make an informed investment decision with respect to the Shares, (B) has had an opportunity to discuss with management of the Purchaser the intended business and financial affairs of the Purchaser and to obtain information (to the extent the Purchaser possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any administrator information furnished to him or receiver been appointed or any distressto which he had access, execution or any other process been levied (C) can bear the economic risk of (I) an investment in the Shares indefinitely and (II) a total loss in respect of such investment and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the undertaking or risks of and form an investment decision with respect to its investment in the assets of the Vendor or any part thereofShares and to protect its own interest in connection with such investment.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser as follows and acknowledges that the following Offeror is true, accurate relying upon such representations and not misleading at warranties in connection with the date entering into of this Agreement (immediately before Closing, and the Vendor is deemed to warrant and represent to purchase by the Purchaser that each Offeror of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Holdco Shares:
(a) [Vendor is a corporation duly incorporated and validly existing under • and has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under the terms of this Agreement] [NTD: Revise if Vendor is not a corporation];
(b) this Agreement has been duly authorized, executed and delivered by Vendor and constitutes a valid and binding obligation of Vendor enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency and other laws of general application limiting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may be granted only in the discretion of a court of competent jurisdiction;
(c) Holdco is a corporation duly organized incorporated and validly existing under the laws of its jurisdiction of incorporation;
(d) neither the nature of its business nor the location or character of the property owned by Holdco requires Holdco to be registered, licensed or otherwise qualified as an extra-provincial or foreign corporation or to be in good standing in any other jurisdiction;
(e) the authorized capital of Holdco consists of •;
(f) the Holdco Shares are validly issued and outstanding as fully paid and non-assessable shares in the capital of Holdco and are the only issued and outstanding securities of Holdco;
(g) there are no:
(i) options, warrants, conversion or exchange privileges, calls or other rights to acquires shares or other securities of Holdco of any nature whatsoever;
(ii) agreements, arrangements, commitments or obligations to issue or sell any shares in the capital of Holdco; and
(biii) securities or obligations of any kind convertible into or exchangeable for shares in the capital of Holdco;
(h) Vendor:
(i) is the beneficial owner of the Holdco Shares with good and marketable title thereto, free and clear of any and all corporate action Encumbrances;
(ii) has the sole right to sell, assign, transfer and otherwise dispose of the Holdco Shares as provided in this Agreement; and
(iii) has not granted or agreed to grant any proxy in respect of the Holdco Shares or entered into any voting trust, vote pooling or other agreement with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind as to the Holdco Shares;
(i) none of the execution and delivery by the Vendor required for of this Agreement or the lawful and valid consummation completion of the transactions contemplated herein have been duly takenunder the terms of this Agreement or the compliance by the Vendor with its obligations under the terms of this Agreement will result in a breach of:
(i) the constating documents of the Holdco; or
(ii) any agreement or instrument to which Holdco is a party;
(cj) The Vendor except as disclosed in writing to the Offeror before the date of this Agreement and accepted by the Offeror, acting reasonably, Holdco:
(i) has directly held the Subject Shares since •;
(ii) since its date of incorporation has carried on no business other than •;
(iii) has no liabilities (whether accrued, absolute, potential, contingent or otherwise) or employees and owns or holds no property or assets or any interests therein of any nature or kind whatsoever other than the Subject Shares;
(iv) is not a partner, co-tenant, joint venturer or otherwise a participant in any partnership, joint venture, co-tenancy or other similar jointly owned business;
(v) is not a party to nor bound or affected by any agreements, commitments or understandings of any nature whatsoever, written or oral except for this Agreement; and
(vi) is not a party to nor bound by any agreement of guarantee, indemnification, assumption or endorsement or any other like commitment of the obligations, liabilities (contingent or otherwise) or indebtedness of any other person, firm or corporation;
(k) Holdco:
(i) has duly and timely filed its tax returns with the appropriate taxing or other governmental authority or agency or, if not timely filed, has paid any penalties imposed as a result thereof and has duly, completely and correctly reported all income and all other amounts and information required to executebe reported thereon (complete and correct copies of all such returns and other documents filed in respect of the three fiscal years of Holdco ending prior to the date hereof have been provided to the Offeror);
(ii) has duly and timely paid all taxes, deliver including all interest and perform penalties relating thereto, that are due and payable by it and there are no taxes that are not yet due and payable and that relate to periods ending on or prior to the date of this Agreement;
(diii) The Vendor has not requested, nor entered into any agreement or other arrangement or executed any waiver providing for, any extension of time within which:
(A) to file any tax return covering any taxes for which Holdco is the sole legal and beneficial owner of the Sharesor may be liable;
(eB) The Vendor Holdco is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens required to pay or encumbrances were registered remit any taxes or are capable amounts on account of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.taxes; or
(fC) No order has any taxing or other governmental authority or agency may assess or collect taxes for which Holdco is or may be liable;
(iv) Canadian federal and provincial income tax assessments have been made issued to Holdco covering all past periods up to and including the fiscal year ended • and there are no actions, suits, proceedings, investigations, audits or petition presented or resolution passed for the winding up of the Vendor norclaims now pending or, has any administrator or receiver been appointed or any distressafter due inquiry, execution or any other process been levied threatened, against Holdco in respect of the undertaking any taxes and there are no matters under discussion, audit or the assets of the Vendor appeal with any taxing or any part thereof.other governmental authority or agency relating to taxes;
(gv) The entering into this Agreement does has duly and timely withheld from any amount paid or credited by it to or for the account or benefit of any person, including, without limitation, any of its employees, officers and directors and any non-resident person, the amount of all taxes and other deductions, required by any applicable law, rule or regulation to be withheld from any such amount and has duly and timely remitted the same to the appropriate taxing or other governmental authority or agency;
(vi) has not and will not cause settle or extinguish any debt or other obligation of Holdco on or prior to the Vendor to be in breach Closing Date such that the provisions of any sections 80-80.04 of the terms and provisions of any agreement Tax Act apply or arrangement or order or injunction of any Court or competent tribunalwould apply thereto;
(hvii) There there are no circumstances that could result in the application of section 78 of the Tax Act to Holdco; and
(viii) Holdco is not a non-resident of Canada or a non-resident owned investment corporation for the purposes of the Tax Act;
(l) the Vendor is not a non-resident of Canada for the purposes of the Tax Act;
(m) there are no Encumbrancesuits, actions, litigation, investigation, claim, complaint, grievance or proceeding, including appeals and applications for review, in progress, pending or threatened against or relating to Holdco or affecting its assets before any court, governmental department, commission, board, bureau, agency or arbitration panel;
(n) Holdco has conducted its business in material compliance with all applicable law, rules and regulations of any governmental, administrative or regulatory authority, including any supranational authority, judgments, orders, rulings or awards of any court arbitrator or any governmental, administrative or regulatory authority;
(o) no consent, waiver, approval, authorization, exemption, registration, licence or declaration of or by, or filing with, or notification to any governmental, administrative or regulatory authority is required to be made or obtained by Holdco or the Vendor in connection with:
(i) the execution, delivery or enforcement of this Agreement; or (ii) the consummation of any transactions provided for herein;
(p) Vendor has made available to the Offeror, the articles and by-laws of Holdco, including any and all amendments thereto and such articles and by-laws as so amended are in full force and effect and no amendments are being made to the same;
(q) Vendor has made available to the Offeror, all books and records of Holdco, including the minute books and:
(i) such books and records fairly and correctly set out and disclose in all material respects the financial position of Holdco and all financial transactions relating to Holdco have been accurately recorded in such books and records;
(ii) the minute books include complete and accurate minutes of all meetings of the directors or shareholders of Holdco, held to date or resolutions passed by the directors or shareholders on consent, since the date of its incorporation; and
(iii) the register of shareholders, register of transfers and register of directors of Holdco as set out in the minute books of Holdco are complete and accurate; and
(r) Vendor has made available to the Offeror the financial statements of Holdco for the last •[five] years ended • , including statements of the financial position of Holdco as at the end of each such year, and there is no agreement, arrangement or obligation to create or give an Encumbrance, such financial statements are fair and accurate in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Sharesall respects.
Appears in 1 contract
Representations and Warranties of Vendor. The Purchaser acknowledges that it is purchasing the Assets on an “as is, where is” basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor hereby represents and warrants to the Purchaser or any Third Party, except that Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of twelve (12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):hereof:
(a) it Vendor is a body corporate, duly organized incorporated and validly existing under the laws of its the jurisdiction of incorporation; andincorporation of Vendor, is authorized to carry on business in all jurisdictions in which the Assets are located, and now has good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of Vendor in and to the Assets according to the true intent of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite shareholders’ and directors’ actions and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which Vendor is bound;
(c) The the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has is party or by which Vendor is bound, nor under any judgment, decree, order, statute, regulation, rule or licence applicable to Vendor excepting provisions in the authority Title Documents pursuant to execute, deliver and perform this Agreementwhich consents to assignment are required;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements no authorization or approval or other action by and no chargesnotice to or filing with any governmental authority or regulatory body exercising jurisdiction over the Assets is required for the due execution, liens delivery and performance by Vendor of this Agreement, other than authorizations, approvals, or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Lawexemptions from requirement therefore, Cap 113, as amended (the “Law”) or previously obtained and currently in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.force;
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers’ or receiver been appointed or any distress, execution or any other process been levied finders’ fees in respect of this Agreement or in the undertaking transaction effected by it for which Purchaser shall have any obligation or the assets of the Vendor or any part thereof.liability;
(g) The entering into this Agreement does not and will not cause Vendor is a non-resident within the Vendor to be in breach meaning of any Section 116 of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalIncome Tax Act (Canada);
(h) There other than the Permitted Encumbrances, the Assets are now free and clear of all liens, royalties and encumbrances created by, through or under Vendor and Vendor has not alienated the Assets or any part or portion thereof;
(i) none of the Assets are subject to any preferential, pre-emptive or first purchase rights, created by, through or under Vendor that become operative by virtue of this Agreement or the transaction effected by it which have not been waived as of the date hereof or in respect of which the time periods for exercising such rights have not expired as of the date hereof;
(j) with respect to the Assets, to the knowledge, information and belief of Vendor, it has not received notice of default and is no Encumbrancenot in any default under any obligation, and there is no agreement, arrangement document, order, writ, injunction or obligation decree of any court or of any commission or administrative agency;
(k) no suit, action or other proceeding before any court or governmental agency is pending against Vendor or, to create the knowledge, information and belief of Vendor, has been threatened against Vendor, which might result in impairment or give an Encumbranceloss of interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets;
(l) all ad valorem, property, production, severance and similar taxes and assessments based upon or measured by the ownership or production of Leased Substances or any of them or the receipt of proceeds therefore have been properly paid, however, in relation the case of any and all amounts due and payable prior to any the time Vendor acquired an interest in and to the Assets to which such amounts pertain, Vendor makes this representation and warranty only to the best of its knowledge, information and belief;
(m) in respect of the Shares. No person has claimed Assets, except in connection with the AFE(s), there are no outstanding authorizations for expenditure in respect of which Vendor’s share is in excess of Twenty-five Thousand Dollars ($25,000.00) pursuant to which expenditures will or may be entitled to an Encumbrance made in relation to any respect of the SharesAssets;
(n) in respect of the Assets that are operated by Vendor, if any, Vendor holds all valid licences, permits and similar rights and privileges that are required and necessary under applicable law to operate the Assets as presently operated;
(o) Vendor is not aware of and has not received:
(i) any orders or directives which relate to environment matters and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied in all material respects; or,
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof; and,
(p) except as may be set out in Schedule “B”, there are no Take or Pay Obligations.
Appears in 1 contract
Samples: Petroleum, Natural Gas and General Rights Conveyance (Enertopia Corp.)
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that VENDOR makes the following representations and warranties to BUYER, no claim in respect of which shall be made or be enforceable by BUYER unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by BUYER to VENDOR within a period of twelve (12) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):hereof:
(a) it VENDOR is duly organized the legal and validly existing under the laws registered beneficial owner of all of its jurisdiction stated interests in the Acquisition Lands, and such interests are free of incorporation; andany liens, claims, charges, security interests or encumbrances of any kind whatsoever, except for the Permitted Encumbrances;
(b) all corporate action of Vendor required for there are no actions, suits, proceedings or claims existing or, to the lawful and valid consummation best of the transactions contemplated herein have been duly takenknowledge, information and belief of VENDOR pending or threatened with respect to or in any manner challenging ownership of interest in any of the Acquisition Lands, or which might reasonably be expected to result in a material impairment or loss of the Acquisition Lands, or the proposed disposition of interest in the Acquisition Lands;
(c) The Vendor VENDOR is in material compliance with all applicable laws, rules, regulations, orders and statutes applicable to it, the interest in the Acquisition Lands or the operation of the Acquisition Lands, and VENDOR has the not received any notice of any violation, and there is no basis for assertion of any violation, of any applicable law, order, rule, regulation, writ, injunction or decree of any court, governmental or conservation authority to executeor any statute, deliver and perform this AgreementVENDOR holds, in good standing, all licenses, registrations and qualifications required;
(d) The Vendor is the sole legal execution and beneficial owner delivery of this letter agreement and the consummation of the Shares;
(e) The Vendor transaction contemplated herein will not, as a result of VENDOR’s involvement, violate nor be in conflict with any provision of any material agreement or instrument to which VENDOR is in good standing and has complied with all its legala party or is bound or, auditto the best of the knowledge of VENDOR, fiscal and filing requirements any judgment, decree, order, statute, rule or regulation applicable to VENDOR and no chargesauthorizations, liens approvals or encumbrances were registered or consents are capable of registration against required for the Vendor (either with the Registrar of Companies by virtue of section 90 consummation of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges transaction contemplated herein by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.VENDOR; and
Appears in 1 contract
Representations and Warranties of Vendor. The To include the Purchaser to enter into and complete the transactions contemplated by this Agreement, the Vendor hereby represents and warrants to the Purchaser Purchaser, as representations and warranties that the following is true, accurate are true and not misleading correct as at the date hereof and will be true and correct on the Closing Date if such representations and warranties were made on the Closing date (except insofar as such representations and warranties are stated to be given as of this Agreement (immediately before Closinga particular date or for a particular and relate solely to such date or period, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):that:
(a) it the Vendor is a corporation duly organized and formed, validly existing and in good standing under the laws of its jurisdiction the Province of incorporation; andBritish Colombia;
(b) all corporate action of Vendor required for is in good standing in each jurisdiction in which the lawful and valid consummation nature of the transactions contemplated herein have been duly takenbusiness conducted by it or the property owned or leased by the Vendor makes such qualification necessary, including without limiting the generality of the foregoing, Ukraine;
(c) The Vendor has the authority full power, authority, right and capacity to executeown and dispose of the Interest, to execute and deliver this Agreement, to complete the transactions contemplated hereby and to duly observe and perform all of its covenants and obligations herein set forth; and,
(d) is not in default of any reporting or filling requirement under any applicable corporate, securities or taxation law or other law to which it is subject;
(e) this Agreement has been duly and validly executed and delivered by the Vendor and constitutes a legal, valid and biding obligation of the Vendor, enforceable against the Vendor in accordance with its terms;
(f) neither the execution nor the delivery of this Agreement, or the other agreements and instruments contemplated hereby, nor the completion of the transactions contemplated hereby will:
(i) constitute a default under, or violate or cause, or give to any person or Government Authority, any right of acceleration, termination or cancellation pursuant to:
(A) any constating documents of the Vendor or any resolution of the Vendor;
(B) any indenture, mortgage, deed of trust, agreement, contract, lease, franchise, Permit, or other instrument or commitment to which the Vendor is a party or is subject, or by which it is bound or from which it derives benefit or which is required or desirable for the conduct in the usual and ordinary course of the operation of the Joint Venture other than those for which consent will be obtained; and,
(C) any law, judgment, decree, order, injunction, rule, statute or regulation of any court, arbitrator or Governmental Authority by which the Joint Venture or the Vendor is bound or to which the Joint Venture or the Vendor is subject;
(ii) result in the creation of any Encumbrance on the Interest or the Joint Venture; or,
(iii) result in any fees, duties, taxes, assessments or other amounts relating to the Interest or the Joint Venture becoming due or payable;
(g) no Permit from any Governmental Authority, or order of any court or arbitrator, or filing by the Vendor with any Governmental Authority, court or arbitrator, is required in order for the Vendor:
(i) to incur the obligations set out herein;
(ii) to execute and deliver all other documents and instruments to be delivered by the Vendor pursuant to this Agreement;
(diii) The to duly perform and observe the terms and provisions of this Agreement;
(iv) to render this Agreement legal, valid, binding and enforceable;
(h) to Vendor’s knowledge, no material action, suit, judgment, investigation, inquiry, assessment, reassessment, litigation, determination or administrative or other proceeding or arbitration before or of any court, arbitrator or Governmental Authority or dispute with any Governmental Authority is in process, or pending or threatened, against or relating to the Joint Venture, the Business or the Interest and Interest and no state of facts which could constitute the basic therefor;
(i) to Vendor’s knowledge the Joint Venture has not generated, manufactures, refined, treated, transported, stored, handled, disposed of, transferred, produced or processed Hazardous Substances, except in compliance with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, including all environmental, health and safety statutes and regulations;
(j) to Vendor’s knowledge the Business complies with all applicable laws, judgments, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authorities, including all environmental, health and safety statutes and regulations;
(k) to Vendor’s knowledge the Joint Venture is not subject to any judicial or administrative proceeding alleging violation of any applicable environmental, health or safety law, judgment, decree order, injunction, rule, statute or regulation;
(l) to Vendor’s knowledge, the Business is not the subject of investigation by any Governmental Authority evaluating whether any Governmental Authority evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment;
(m) the Joint Venture has not filed any notice under any applicable environmental, health or safety law, judgment, decree, order, injunction, rule, statute or regulation indicating past or present treatment, storage or disposal of a Hazardous Substance or constituent, or other substance into the environment;
(n) to Vendor’s knowledge the Joint Venture has no contingent liability in connection with the release of any Hazardous Substance or constituent, or other substance into the environment;
(o) to Vendor’s knowledge all Permits, including, without limiting the generality of the foregoing, the Asset, have been obtained, are validly issued, are in full force and effect and are in good standing and no notice of breach or default or defect in respect of the terms of any such Permit has been received by the Vendor and the Vendor is not aware of any matters which could give rise to such notice;
(p) to Vendor’s knowledge the sole Interest constitutes all of the material rights, assets and properties that are usually and originally used or held for use in connection with or otherwise relate to the operation of the Business in the usual and ordinary course of the operation of the Business;
(q) the Joint Venture is the legal and beneficial owner of and has title to the SharesAsset free and clear of all Encumbrances, and the Asset is not in the possession of the control of any other person;
(er) The to Vendor’s knowledge except as otherwise expressly disclosed herein there has not been any default in any term, condition, provision or obligation to be performed by Vendor under the Joint Venture Agreement which is in good standing and has complied with in full force and effect, unamended;
(s) the Schedules to this Agreement contain a true and complete listing of all its legalmaterial written contracts or commitments affecting ownership of, auditor title to, fiscal and filing requirements and or any interest in any mineral properties;
(t) there is no chargeswritten, liens oral or encumbrances were registered implied agreement, option, understanding or are commitment or any right or privilege capable of registration against becoming any of the same, for the purchase from the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s LawInterest, Cap 113, as amended or for the purchase from the Joint Venture of the Asset;
(the “Law”u) or in to the Vendor’s register knowledge there is no indebtedness to any person which might, by operation of charges law or otherwise, now or hereafter constitute or be capable of forming an Encumbrance upon the Asset or the Joint Venture and there is no indebtedness of any kind whatsoever relating to the Business in respect of which the Purchaser may become liable on or after the Closing Dates;
(v) neither the Vendor nor the Joint Venture have any employees or any collective bargaining agreement or other agreement with a trade union, labour union or other employees’ association or made commitments or conducted negotiations with any trade union, labour union or other employees’ association with respect to any future agreements, and the Vendor is not aware of any current attempt to organize or establish any trade union, labour union or other employees’ association in connection with the Business and no part of the Business has been certified as a unit appropriate for collective bargaining by virtue which the Purchaser will be bound as a result of the purchase of the Interest;
(w) the Vendor is not a “resident in Canada” for the purposes of section 99 116 of the LawIncome Tax Act of Canada;
(x) all negotiations relatives to this Agreement have been carried on by the Vendor directly with the Purchaser, without the intervention of any agent, broker or other party acting on behalf of the Vendor and its shares have not been pledged there are no brokerage fees, commissions or otherwise encumbered nor were they subject other amounts which are or nay become payable to any charge or interest third party in connection with the execution and delivery of any third partythe Agreement and the completion of the transactions contemplated herein;
(y) the foregoing representations and warranties of the Vendor will be true and correct in all material respects on each of the Effective Date and the Closing Date as if such representations and warranties were made on each of the Effective Date and the Closing Date.
(fz) No order has been made to the Vendor’s knowledge, except as disclosed in this Agreement, the Vendor does not have any information or petition presented knowledge of any fact relating to the Business, the Asset or resolution passed for any indebtedness of the winding up Business or the transactions contemplated hereby which might reasonably be expected to effect, materially and adversely, the Asset or the organization, operations, affairs, business, properties, prospects or financial condition or position of the Business, other than general market information;
(aa) To the Vendor’s knowledge no certificate furnished by or on behalf of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied to the Purchaser at the time of Closing in respect of the undertaking representations, warranties or the assets covenants of the Vendor or any part thereof.
(g) The entering into contained in this Agreement does will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalmisleading;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Representations and Warranties of Vendor. The following representations and warranties are made and given by the Vendor hereby represents and warrants to the Purchaser that and expressly survive the following is true, accurate and not misleading at closing of this agreement. The representations are true as of the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant agreement and represent to the Purchaser that each will be true as of the following is true, accurate and not misleading by reference date of closing when they shall continue as warranties according to the facts and circumstances as at Closing):their terms:
(a) it is duly organized the Articles of Incorporation and validly existing under all amendments to the laws Articles of its jurisdiction Incorporation of incorporationthe Corporation are as stated in Schedule B; and
(b) all corporate action the issued share capital of Vendor required the Corporation is as stated in Schedule C; (c) the balance sheet appended in Schedule A and the financial statements for the lawful and valid consummation last three complete fiscal years of the transactions contemplated herein Corporation produced by the Vendor appended in Schedule D have been duly takenprepared in accordance with generally accepted accounting principles applied on a consistent basis and are fair and accurate; (d) the Corporation owns the assets recorded in the balance sheet appended in Schedule A free and clear of liens, charges, and encumbrances except as noted in Schedule E; (e) the Corporation has properly reported and is not in arrears of payment of any direct or indirect taxes or of any employee -related statutory deductions or remittances; (f) the corporate, business, accounting, tax, and employment records of the Corporation are complete in all material respects; (g) the business of the Corporation will not be adversely affected in any material respect in any way, whether by the Vendor or by any other person or cause whatsoever, up to the closing and the Vendor will not do anything before or after closing to prejudice the goodwill of the Corporation; (h) the Corporation will carry on business as usual until closing except that it will not declare any dividends or make any other distributions of capital or retained earnings or undertake or compromise any major contractual liabilities without the express written consent of the Purchaser;
(ci) The Vendor has there are no outstanding legal actions or judgments against the authority Corporation and the Corporation is not in default of any agreement to execute, deliver which the Corporation is a party and perform this Agreement;
(d) The Vendor is the sole legal and beneficial owner of the Shares;
(e) The Vendor is all such agreements are in good standing and has complied with the Corporation is entitled to all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or stated benefits in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalsuch agreements;
(hj) There is no Encumbrancethe Vendor has made full and fair disclosure in all material respects of any matter that could reasonably be expected to affect the Purchaser's decision to purchase the shares on the terms set out in this agreement;
(k) the Vendor will execute such assignments, and there is no agreementconsents, arrangement clearances, or obligation assurances after closing, prepared at the Purchaser's expense, as the Purchaser considers necessary or desirable to create or give an Encumbrance, in relation to any assure the Purchaser of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any proper and effective completion of the Sharesthis agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Shares (Scottsdale Scientific Inc)
Representations and Warranties of Vendor. The Vendor hereby represents Purchaser acknowledges that it is purchasing Vendor's interest in and warrants to the Assets on an "as is, where is" basis, acknowledging that Vendor will only acquire the Assets immediately prior to Closing and therefore Vendor has no personal knowledge of the operations or condition of the Assets, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, except that and subject in all instances to Permitted Encumbrances, Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is true, accurate and not misleading at given by Purchaser to Vendor within a period of nine (9) months from the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Closing Time:
(a) it Vendor is a corporation duly organized and validly existing under the laws of its the jurisdiction of incorporation; incorporation of Vendor, is authorized to carry on business in the Province in which the Lands are located, and, subject to the completion of the transactions under the Innova Agreement, will have good right, full power and absolute authority to sell, assign, transfer, convey and set over the interest of Vendor in and to the Assets according to the true intent and meaning of this Agreement;
(b) all corporate action the execution, delivery and performance of Vendor required for the lawful and valid consummation of the transactions contemplated herein have this Agreement has been duly takenand validly authorized by any and all requisite corporate, shareholders' and directors' actions and will not result in any violation of, be in conflict with or constitute a default under any articles, charter, bylaw or other governing document to which Vendor is bound;
(c) The the execution, delivery of this Agreement will not result in any violation of, be in conflict with or constitute a default under any term or provision of any agreement or document to which Vendor has the authority is party or by which Vendor is bound, nor under any judgment, decree, order, statute, regulation, rule or license applicable to execute, deliver and perform this AgreementVendor;
(d) The this Agreement and any other agreements delivered in connection herewith constitute valid and binding obligations of Vendor is the sole legal and beneficial owner of the Sharesenforceable against Vendor in accordance with their terms;
(e) The Vendor is in good standing and has complied with all its legalno authorization or approval or other action by, audit, fiscal and filing requirements and no chargesnotice to or filing with, liens any governmental authority or encumbrances were registered regulatory body exercising jurisdiction over the Assets is required for the due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Lawexemptions from requirement therefor, Cap 113, as amended (the “Law”) or previously obtained and currently in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.force;
(f) No order Vendor has been made not incurred any obligation or petition presented liability, contingent or resolution passed otherwise, for the winding up of the Vendor nor, has any administrator brokers' or receiver been appointed or any distress, execution or any other process been levied finders' fees in respect of the undertaking this Agreement or the assets of the Vendor transaction to be effected by it for which Purchaser shall have any obligation or any part thereof.liability;
(g) The entering into this Agreement Vendor is not a non-resident within the meaning of section 116 of the Income Tax Act (Canada) and the interest of Vendor in and to the Assets does not and will not cause constitute all or substantially all the Vendor to be in breach property of any of the terms and provisions of any agreement or arrangement or order or injunction of any Court or competent tribunalVendor;
(h) There Vendor has not alienated or encumbered the Assets or any part or portion thereof, Vendor has not committed and is no Encumbrancenot aware of there having been committed any act or omission whereby the interest of Vendor in and to the Assets or any part or portion thereof may be cancelled or determined, and there the Assets will be free and clear of all liens, royalties, conversion rights and other claims of Third Parties, created by, through or under Vendor or of which Vendor has knowledge;
(i) except as may be set out in Schedule "B", none of the interest of Vendor in and to the Assets is subject to any preferential, pre-emptive or first purchase rights, created by, through or under Vendor or of which, to the best of Vendor's knowledge, Vendor is aware, that become operative by virtue of this Agreement or the transaction to be effected by it;
(j) Vendor has not received notice from any Third Party claiming an interest in and to the Assets adverse to the interest of Vendor and to the best of Vendor's knowledge Vendor has no agreementreason to believe that any such claim may be made;
(k) Vendor has not knowingly failed to comply with, arrangement perform, observe or satisfy any term, condition, obligation to create or give an Encumbrance, in relation to liability which has heretofore arisen under the provisions of any of the Shares. No person Title Documents or any other agreements and documents to which the Assets are subject;
(l) Vendor has claimed not received notice of default and is not, to the knowledge, information and belief of Vendor, in any default under any obligation, agreement, document, order, writ, injunction or decree of any court or of any commission or administrative agency, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets;
(m) no suit, action or other proceeding before any court or governmental agency has been commenced against Vendor or, to the knowledge, information and belief of Vendor, has been threatened against Vendor or any Third Party, which might result in impairment or loss of the interest of Vendor in and to the Assets or which might otherwise adversely affect the Assets or any rights to, and rights to enter upon, use or occupy the surface of any lands which are or may be entitled used to gain access to or otherwise use the Petroleum and Natural Gas Rights and the Tangibles, or either of them;
(n) to the best of Vendor’s knowledge, all amounts due and payable to Third Parties prior to the date hereof and pertaining to the Assets have been fully paid, including without limitation (i) any and all ad valorem and property taxes, (ii) any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of the Leased Substances or any of them or the receipt of proceeds therefor, and (iii) all amounts due and payable in connection with Permitted Encumbrances;
(o) in respect of the Assets, except in connection with the AFE's, there are no financial commitments of Vendor which are due as of the date hereof or which may become due by virtue of matters occurring or arising prior to the date hereof, other than usual operating expenses incurred in the normal conduct of operations;
(p) no obligations have accrued pursuant to the Title Documents that may be satisfied by the drilling of a well, the payment of compensatory royalty or the surrender of some or all of the interests granted, reserved or otherwise conferred pursuant to the Title Documents, other than obligations that have been satisfied (by means other than by the payment of compensatory royalties) or have been permanently waived;
(q) excepting production limits of general application in the oil and gas industry, none of the Xxxxx operated by Vendor is subject to production or other penalties imposed by the Title Documents or by any other agreements and documents to which the Assets are subject, or by any laws, rules, regulations, orders or directions of governmental or other competent authorities;
(r) Vendor is not aware of and has not received:
(i) any orders or directives which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied with in all material respects; or
(ii) any demand or notice issued with respect to the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the date hereof;
(s) except for the Production Contracts, Vendor is not a party to and Vendor's interest in and to the Assets is not otherwise bound or affected by any (i) production sales contracts pertaining to the Leased Substances or any of them that cannot be terminated on notice of 31 days or less (without an Encumbrance early termination penalty or other cost), (ii) gas balancing or similar agreements pertaining to the Leased Substances or any of them, (iii) agreements for the transportation, processing or disposal of the Leased Substances or any of them or substances produced in relation connection with the Leased Substances or any of them, (iv) agreements for the contract operation by a Third Party of the Assets operated by Vendor, and (v) agreements to provide transportation, processing or disposal capacity or service to any of the SharesThird Party; and
(t) except as may be set out in Schedule "B", there are no Take or Pay Obligations.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Barnabus Energy, Inc.)
Representations and Warranties of Vendor. The Vendor hereby represents Purchaser acknowledges that it is purchasing Vendor's interest in and warrants to the Assets on an "as is, where is" basis, without representation and warranty and without reliance on any information provided to or on behalf of Purchaser by Vendor or any Third Party, except that Vendor makes the following representations and warranties to Purchaser, no claim in respect of which shall be made or be enforceable by Purchaser unless written notice of such claim, with reasonable particulars, is truegiven by Purchaser to Vendor within a period of twelve(12) months from the Effective Date : Vendor has not alienated or encumbered the Assets or any part or portion thereof and the Assets are now free and clear of all royalty burdens, accurate liens, penalties, conversion rights and not misleading at the date other claims of this Agreement (immediately Third Parties, created by, through or under Vendor or of which Vendor has knowledge; no suit, action or other proceeding before Closingany court or governmental agency has been commenced against Vendor or, the Vendor is deemed to warrant and represent to the Purchaser that each knowledge, information and belief of Vendor, has been threatened against Vendor or any Third Party, which might result in impairment or loss of the following is true, accurate interest of Vendor in and not misleading by reference to the facts Assets or which might otherwise adversely affect the Assets or any rights to, and circumstances as at Closing):
(a) it is duly organized and validly existing under rights to enter upon, use or occupy the laws surface of its jurisdiction of incorporation; and
(b) all corporate action of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly taken;
(c) The Vendor has the authority any lands which are or may be used to execute, deliver and perform this Agreement;
(d) The Vendor is the sole legal and beneficial owner of the Shares;
(e) The Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged gain access to or otherwise encumbered nor were they subject use the Well; any and all operations of Vendor, and to the knowledge, information and belief of Vendor, any charge and all operations by Third Parties, on or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking Assets, have been conducted in accordance with good oil and gas industry practices and in material compliance with all applicable laws, rules, regulations, orders and directions of governmental and other competent authorities; Vendor is not aware of and has not received: any orders or directives which relate to environmental matters and which require any work, repairs, construction or capital expenditures with respect to the assets of the Vendor Assets, where such orders or directives have not been complied with in all material respects; or any part thereof.
(g) The entering into this Agreement does not and will not cause demand or notice issued with respect to the Vendor to be in breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding on the terms and provisions date hereof; Vendor has made available to Purchaser all information in the possession of any agreement Vendor or arrangement to which Vendor has access relevant to environmental damage or order contamination or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation other environmental problems pertaining to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the SharesAssets.
Appears in 1 contract
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that makes the following is true, accurate representations and not misleading at the date warranties to and in favour of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances as at Closing):Purchaser:
(a) it Vendor is an unincorporated trust and its trustee, Perpetual Energy Operating Corp., is a corporation duly organized amalgamated and validly existing under the laws of its jurisdiction the Province of incorporation; andAlberta and registered to carry on business in the jurisdictions in which the Assets are situate;
(b) Vendor has all corporate action requisite power and capacity to sell and convey its interest in the Assets in accordance with the provisions of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly takenthis Agreement;
(c) The execution, delivery and performance of this Agreement by Vendor has been duly and validly authorized by all requisite action on the authority to executepart of Vendor and the directors and officers of its trustee, deliver Perpetual Energy Operating Corp., and perform this Agreementwill not result in any violation of, be in conflict with, or constitute a default under, the constating documents of Vendor;
(d) The the execution, delivery and performance of this Agreement by Vendor will not result in any violation of, be in conflict with or constitute a default under: (i) any term or provision of any agreement, instrument, permit authority or governmental authorization to which Vendor is the sole legal and beneficial owner of the Sharesparty or by which Vendor is bound; or (ii) any Applicable Law that is specifically applicable to Vendor;
(e) The this Agreement and all other agreements delivered or to be delivered by Vendor is in good standing and has complied with all its connection herewith constitute, or when delivered shall constitute, legal, auditvalid and binding obligations of Vendor, fiscal and filing requirements and no chargesenforceable against Vendor in accordance with their respective terms, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest all Applicable Law pertaining to bankruptcy, insolvency and creditors' rights and the general principles of any third party.equity;
(f) No order has been made other than the Competition Act Approval, no authorization or petition presented approval or resolution passed other action by, and no notice to or filing with, any Governmental Authority is required for the winding up due execution, delivery and performance by Vendor of this Agreement, other than authorizations, approvals or exemptions previously obtained and currently in force or to be obtained as and when required during the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets of the Vendor or any part thereof.Pre-Closing Period;
(g) The entering into Vendor has not incurred any obligation or liability, contingent or otherwise, for brokers' or finders' fees in respect of this Agreement does not and will not cause or the Vendor to be in breach of Transaction for which Purchaser shall have any of the terms and provisions of any agreement obligation or arrangement or order or injunction of any Court or competent tribunalliability;
(h) There is no Encumbrance, and there is no agreement, arrangement Vendor's interest in the Assets does not comprise all or obligation to create or give an Encumbrance, in relation to any substantially all of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any assets of Perpetual;
(i) Vendor is not a non-resident of Canada for the purposes of section 116 of the Shares.Income Tax Act (Canada);
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the i) Vendor is deemed to warrant and represent to the Purchaser that each of the following is truea ^corporation, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it is partnership, limited liability company or a non-profit corporation duly organized and organized, validly existing and in good standing under the laws of the State of , (ii) is duly registered to conduct business in the State of New Jersey, (iii) is not in violation of any provision of its jurisdiction ^certificate of incorporationincorporation or by- laws (LLC use certificate of formation or operating agreement; and
if partnership use: ^partnership agreement), and (biv) all corporate action of Vendor required for the lawful and valid consummation of the transactions contemplated herein have been duly taken;
(c) The Vendor has the power and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Agreement;.
b) To the best of Vendor’s knowledge, and upon due inquiry, there is no action or proceeding pending or threatened against Vendor before any court or administrative agency that might adversely affect the ability of Vendor to perform its obligations under this Agreement and all consents, authorizations, and approvals of governmental bodies or agencies required in connection with the performance of Vendor’s obligations under this Agreement have been obtained and will be obtained whenever required hereunder or by law.
c) Vendor represents and warrants that it (1) is not in violation of any statute governing the LWD or the DEP; (2) it is not in violation of any rule or regulation issued by the LWD or DEP; and (3) it does not have any unpaid fines or penalties or otherwise have any outstanding payment due to the LWD or DEP that is not subject to a payment plan approved by LWD or DEP.
d) Neither the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by, or conflicts with or results in a breach of the terms, conditions, or provisions of any corporate restrictions or any evidence of indebtedness, agreement, or instrument of whatever nature to which Vendor is bound, or constitutes a default under any of the foregoing.
e) All tax returns and reports of Vendor required by law to be filed have been duly filed and all taxes, assessments, fees and other governmental charges upon Vendor or upon any of its respective properties, assets, income or franchises which are due and payable have been paid other than those which are presently payable without penalty or interest. Nothing in this subparagraph is intended to preclude Vendor from exercising its lawful right to contest any tax, assessment, fee or other governmental charge.
f) All statements, representations and warranties made by Vendor in its application to the Authority, and in any materials furnished in support of that application were true when made, are true, in all material respects, as of the date hereof, and shall remain and be true and correct during the Agreement Term, it being understood by the Vendor that all such statements, representations, warranties and materials have been relied upon by the Authority as an inducement to disburse the Voucher Award and shall continue to be relied upon by the Authority in administering the Agreement. Vendor further understands and agrees that, if, during the Agreement Term, any such statements, representations, warranties and materials become untrue or false, it shall have a duty to immediately notify the Authority in writing of such fact.
g) The principal office of Vendor is located at
h) Vendor represents that it has at all times relevant to this Agreement been represented by advisors of its own selection, including, but not limited to, attorneys at law and/or certified public accountants; that it has not relied upon any statement, representation, or warranty, provided by the Authority in making its choice to participate in the NJ ZIP Program and further waives all claims against the Authority arising from the sale of the vehicle; that it acknowledges that it is informed by its advisors of its respective rights, duties, and obligations with respect to the transaction which is the subject of this Agreement under all applicable laws, and that it has no set-offs, defenses or counterclaims against the Authority with respect to the transaction which is the subject of this Agreement.
i) If during the Agreement Term Vendor becomes aware of any facts, occurrences, information, statements, or events that render any of the foregoing representations or warranties herein untrue or materially misleading or incomplete, Vendor shall immediately notify the Authority in writing of such facts, occurrences, information, statements, or events.
j) If compliance is required with N.J.S.A. 52:32-60.1, et seq., which prevents the Authority from certain dealings with businesses engaged in prohibited activities in Belarus or Russia and requires the New Jersey Department of the Treasury (“Treasury”) to create a list of persons engaged in such prohibited activities, the Vendor agrees that by signing this Agreement that the Vendor may be required to certify that it is not engaged in prohibited activities and would not be identified on Treasury’s list of entities engaged in prohibited activities in Russia or Belarus (xxxxx://xxx.xx.xxx/treasury/administration/pdf/RussiaBelarusEntityList.pdf), and that if this statement is willfully false, Vendor shall be subject to penalty.
k) Vendor represents and warrants that they are not a New Jersey State officer or employee prohibited from entering into a contractual agreement with the State of New Jersey to execute any contract or agreement with a value of $25 or more, made, entered into, awarded or granted by any New Jersey State agency pursuant to N.J.S.A. 52:13D-19. I understand New Jersey State officer or employee, also includes his or her partners, any other person for the use or benefit of the New Jersey State employee or on his or her account, and any corporation which they control or in which they own or control more than 1 percent of the stock. Vendor acknowledges that pursuant to The New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12, et seq, State employees are prohibited from representing a party other than the State before any State agency; and representation includes a prohibition against making personal appearances before any State agency on behalf of a party other than the State, writing letters, sending emails, or making phone calls to any State agency on behalf of a third party, and includes a ban on signing any documents or applications submitted to any State agency on behalf of a party other than the State including, but not limited to, this agreement.
l) In compliance with N.J.S.A. 24:6I-49(b)(2), Vendor represents and warrants:
(di) that it (a) has neither applied for nor received from the New Jersey Cannabis Regulatory Commission either a license to operate as a cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service or that employs a certified personal use cannabis handler to perform work for or on behalf of a cannabis establishment, distributor, or delivery service; or (b) is not a property owner, developer, or operator of a project to be used, in whole or in part, by or to benefit a cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service, or to employ a certified personal use cannabis handler to perform work for or on behalf of a cannabis establishment, distributor, or delivery service pursuant to N.J.S.A. 24:6I-49(b)(2)(b).
(ii) Vendor acknowledges an on-going obligation to report to the Authority any change to this statement.
(iii) The Vendor is acknowledges that the sole legal and beneficial owner issuance of a license to operate as a cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service, or the Shares;
(e) The Vendor is in good standing and has complied with all its legalissuance of a certification to perform work for or on behalf of a cannabis establishment, auditdistributor, fiscal and filing requirements and no charges, liens or encumbrances were registered delivery service to a person or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject to any charge or interest of any third party.
(f) No order entity that has been made awarded a State or petition presented or resolution passed for local economic incentive shall invalidate the winding up right of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect to benefit from the economic incentive as of the undertaking date of issuance of the license or certification; and that the assets issuance of a license to operate as a cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service, or issuance of a certification to perform work for or on behalf of a cannabis establishment, distributor, or delivery service at a location that is the subject of a State or local economic incentive shall invalidate the right of the Vendor property owner, developer, or any part thereof.
(g) The entering into this Agreement does not and will not cause operator to benefit from the Vendor to be in breach of any economic incentive as of the terms and provisions date of any agreement or arrangement or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any issuance of the Shareslicense or certification. No person has claimed to be entitled to an Encumbrance The representations and warranties made in relation to any this Section shall survive termination of the Sharesthis Agreement.
Appears in 1 contract
Representations and Warranties of Vendor. The In addition to the representations and warranties of Vendor hereby set forth elsewhere in this Agreement, Vendor represents and warrants to the Purchaser that the following is true, accurate and not misleading at the date of this Agreement (immediately before Closing, the Vendor is deemed to warrant and represent to the Purchaser that each of the following is true, accurate and not misleading by reference to the facts and circumstances Lowe’s as at Closing):follows:
(a) it Vendor is a corporation, partnership or limited liability company (as applicable) duly organized organized, validly subsisting or existing and validly existing in good standing under the laws of its the jurisdiction of incorporation; andits organization. Vendor is duly qualified or licensed to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required. Vendor has the full right, power and authority to enter into and perform its obligations under this Agreement and to conduct its business as now conducted and hereafter contemplated to be conducted and is in compliance with its Articles of Incorporation and Bylaws, Partnership Agreement or Limited Liability Company Agreement (as applicable). This Agreement has been duly executed and delivered by Vendor and constitutes a legal, valid and binding obligation of Vendor, which is enforceable against Vendor in accordance with its terms;
(b) The execution, delivery and performance of this Agreement and all corporate action of instruments and documents to be delivered by Vendor required for are within the lawful Vendor’s corporate, partnership or limited liability company (as applicable) power and valid consummation of the transactions contemplated herein have been duly takenauthorized by all necessary or proper action, including the consent of shareholders, partners or members (as applicable) if required; do not and will not contravene any provisions of the Vendor’s Articles of Incorporation or Bylaws, Partnership Agreement or its Limited Liability Company Agreement (as applicable);
(c) The Vendor has supplied and will continue to supply accurate and continuing information to Lowe’s and to Product end users, which relates to Product safety, whether oral or written, including but not limited to, information set forth on any Vendor Information Sheet, Item Set Up Sheet, International Vendor Set Up Sheet or other document provided to Lowe’s. Moreover, Vendor has signed or will sign a Lowe’s Vendor Information Sheet, and has complied with all other requirements of the authority to execute, deliver and perform this AgreementVendor Requirements;
(d) The Vendor is the sole legal and beneficial owner agrees that neither it nor its employees, contractors and/or subcontractors are in a dual or joint employment relationship with Lowe’s regardless of the Sharesfact that Products and services are provided to Lowe’s under this Agreement;
(e) The execution, delivery and performance of this Agreement by Vendor is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or shall not result in the Vendor’s register breach of charges by virtue any terms of, or constitute a default under, or conflict with, or cause any acceleration of section 99 any obligation of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject Vendor to any charge or interest of any third third-party.;
(f) No order has been made The Products and their packaging and labeling, including, without limitation, the manufacture, use, distribution, advertisement, importation into the United States, sale and offer to sell thereof, do not and shall not infringe or petition presented misappropriate any Intellectual Property Right, confidential information, right of privacy, publicity or resolution passed for other intellectual property or industrial rights of any party regardless of whether the winding up party’s rights originate within or outside the United States (Vendor will provide Lowe’s with such evidence as Lowe’s may request evidencing appropriate authorizations from any third parties with Intellectual Property Rights in or related to the Products to allow Lowe’s to engage in the foregoing activities with respect to the Products, including, without limitation, authorizations satisfactory to Lowe’s from any owners of trademarks associated with the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect Product to permit Lowe’s importation of the undertaking or the assets of the Vendor or any part thereof.such Products);
(g) The entering into this Agreement does not All Products, including, without limitation, chemicals, fertilizers, treated wood, pesticides, insecticides, fungicides or rodenticides (as defined by Applicable Laws and will not cause Standards), are each properly registered, marked, stamped and labeled in accordance with all Applicable Laws and Standards and may be sold by Lowe’s to the Vendor to be in breach of any of the terms and provisions of any agreement public at retail without restriction or arrangement or order or injunction of any Court or competent tribunalfurther product registration;
(h) There Vendor has the authority and the right, including all necessary licenses, visas, work permits or other governmental approvals to enter into this Agreement and to perform any and all services required or agreed to by the parties;
(i) Vendor is no Encumbrance, and there is no agreement, arrangement not under any obligation of a contractual or obligation to create or give an Encumbrance, in relation other nature to any Person that is inconsistent or in conflict with this Agreement or which would prevent, limit or impair in any way the performance by Vendor of its obligations hereunder;
(j) Vendor has not granted any tights or licenses in any Intellectual Property Rights or technology that would conflict with Vendor’s obligations or Lowe’s rights under this Agreement;
(k) Each of Vendor’s employees or contractors performing any task under this Agreement or relating to the Products has the proper skill, training and background necessary to accomplish his or her assigned tasks;
(l) No entity other than Vendor will manufacture the Products or otherwise perform any obligations under this Agreement without the express written consent of Lowe’s;
(m) Lowe’s will have the right to use for its own purposes, any ideas, methods, techniques, materials and information, including any Intellectual Property Rights therein, provided to or otherwise obtained by Lowe’s as a result of this Agreement, without restriction, liability or obligation; and
(n) That any failure of Vendor to comply with this Agreement or the Vendor Requirements or any inaccuracy of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any information provided by Vendor which is contained therein shall constitute a breach of the Sharesthis Agreement.
Appears in 1 contract
Representations and Warranties of Vendor. The To include the Purchaser to enter into and complete the transactions contemplated by this Agreement, the Vendor hereby represents and warrants to the Purchaser Purchaser, as representations and warranties that the following is true, accurate are true and not misleading correct as at the date hereof and will be true and correct on the Closing Date if such representations and warranties were made on the Closing date (except insofar as such representations and warranties are stated to be given as of this Agreement (immediately before Closinga particular date or for a particular and relate solely to such date or period, that: the Vendor is deemed to warrant and represent to the Purchaser that each of the following is truea corporation duly formed, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it is duly organized and validly existing and in good standing under the laws of the Province of British Colombia; is in good standing in each jurisdiction in which the nature of the business conducted by it or the property owned or leased by the Vendor makes such qualification necessary, including without limiting the generality of the foregoing, Ukraine; has the full power, authority, right and capacity to own and dispose of the Interest, to execute and deliver this Agreement, to complete the transactions contemplated hereby and to duly observe and perform all of its jurisdiction of incorporationcovenants and obligations herein set forth; and
(b) all corporate action , is not in default of any reporting or filling requirement under any applicable corporate, securities or taxation law or other law to which it is subject; this Agreement has been duly and validly executed and delivered by the Vendor required for and constitutes a legal, valid and biding obligation of the lawful Vendor, enforceable against the Vendor in accordance with its terms; neither the execution nor the delivery of this Agreement, or the other agreements and valid consummation instruments contemplated hereby, nor the completion of the transactions contemplated herein have been duly taken;
(c) The Vendor has the authority to executehereby will: constitute a default under, deliver and perform this Agreement;
(d) The Vendor is the sole legal and beneficial owner of the Shares;
(e) The Vendor is in good standing and has complied with all its legalor violate or cause, audit, fiscal and filing requirements and no charges, liens or encumbrances were registered or are capable of registration against the Vendor (either with the Registrar of Companies by virtue of section 90 of the Company’s Law, Cap 113, as amended (the “Law”) or in the Vendor’s register of charges by virtue of section 99 of the Law) and its shares have not been pledged or otherwise encumbered nor were they subject give to any charge person or interest Government Authority, any right of acceleration, termination or cancellation pursuant to: any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution or any other process been levied in respect of the undertaking or the assets constating documents of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause resolution of the Vendor; any indenture, mortgage, deed of trust, agreement, contract, lease, franchise, Permit, or other instrument or commitment to which the Vendor to is a party or is subject, or by which it is bound or from which it derives benefit or which is required or desirable for the conduct in the usual and ordinary course of the operation of the Joint Venture other than those for which consent will be in breach obtained; and, any law, judgment, decree, order, injunction, rule, statute or regulation of any of court, arbitrator or Governmental Authority by which the terms and provisions of any agreement Joint Venture or arrangement the Vendor is bound or order to which the Joint Venture or injunction of any Court or competent tribunalthe Vendor is subject;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.
Appears in 1 contract
Representations and Warranties of Vendor. The Vendor hereby represents and warrants to Purchaser the following, and acknowledges that Purchaser that the following is true, accurate relying on these representations and not misleading at the date of warranties in entering into this Agreement and the transactions contemplated under this Agreement:
(immediately before Closing, the i) Vendor is deemed to warrant and represent to the Purchaser that each of the following is truea corporation duly incorporated, accurate and not misleading by reference to the facts and circumstances as at Closing):
(a) it is duly organized and validly existing in good standing under the federal laws of its jurisdiction of incorporation; andCanada;
(bii) no bankruptcy, insolvency or receivership proceedings have been instituted or are pending against Vendor, and Vendor is able to satisfy its liabilities as they become due;
(iii) Vendor has all necessary corporate action power, authority and capacity to own its property and assets to carry on the Business as presently owned and carried on by it, and Vendor is duly licensed, registered and qualified as a corporation to do business and is in good standing in each jurisdiction in which the nature of the Business, and the property owned by it that forms part of the Purchased Assets, make such qualification necessary and all such licenses, registrations and qualifications are valid and subsisting and in good standing;
(iv) Vendor required for has all necessary corporate power, authority and capacity to enter into this Agreement and to perform its obligations hereunder, and the lawful execution and valid delivery of this Agreement and the consummation of the transactions contemplated herein by this Agreement have been duly takenauthorized by all necessary corporate action on the part of Vendor;
(cv) The the Equipment is being provided in its “as is” condition on the Final Closing Date.
(vi) Vendor has good and marketable title to the authority Purchased Assets, free and clear of all encumbrances, and is exclusively entitled to executepossess and dispose of the same; without limiting the generality of the foregoing, deliver there has been no assignment or granting of any license to or in respect of any of the Contracts.
(vii) Vendor has paid all amounts payable on account of salary, bonus payments and perform this Agreementcommission (other than accrued vacation pay, which shall be adjusted proportionately as of the Final Closing Date) to or on behalf of any and all Employees hired by Purchaser in accordance with Section 11;
(dviii) The Vendor all levies under the Workplace Safety and Insurance Act, or under the workers' compensation legislation of any other jurisdiction where the Business is the sole legal and beneficial owner of the Sharescarried on by Vendor, have been paid by Vendor;
(eix) The with respect to labor matters: there is no unfair labor practice complaint under the against Vendor pending before any federal or provincial labor tribunals or any similar agency or body having jurisdiction therefor; there is in good standing and has complied with all its legal, audit, fiscal and filing requirements and no charges, liens labor strike threatened against or encumbrances were registered or are capable of registration against involving Vendor; there is no certification application outstanding respecting the Vendor (either with the Registrar of Companies by virtue of section 90 Employees of the Company’s LawBusiness; there is no grievance or arbitration proceeding or governmental proceeding relating to the Employees pending, Cap 113, as amended (nor is there any such proceeding threatened against Vendor that might have a material adverse effect on Vendor or on the “Law”) or in the Vendor’s register of charges by virtue of section 99 conduct of the Law) Business; no collective bargaining agreement is currently being negotiated by Vendor; and its shares there are no Employees in receipt of or who have not been pledged claimed benefits under any weekly indemnity, long term disability or otherwise encumbered nor were they subject to any charge workers' compensation plan or interest of any third party.
(f) No order has been made or petition presented or resolution passed for the winding up of the Vendor nor, has any administrator or receiver been appointed or any distress, execution arrangement or any other process been levied form of disability benefit program;
(x) there is no suit, action, litigation, arbitration, proceeding or governmental proceeding, including appeals and applications for review in progress, pending or threatened, against or involving Vendor, and there is not presently outstanding against Vendor any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or arbitrator; and
(xi) Vendor is not in arrears or in default in respect of the undertaking or the assets of the Vendor or any part thereof.
(g) The entering into this Agreement does not and will not cause the Vendor to be in breach filing of any of the terms and provisions of any agreement required federal, provincial, or arrangement municipal tax or order or injunction of any Court or competent tribunal;
(h) There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, other return in relation to any of the Shares. No person has claimed to be entitled to an Encumbrance Business; and all taxes, filing fees, and other assessments due and payable or collectable from Vendor in relation to the Business have been paid or collected; and no claim for additional taxes, filing fees, or other amounts and assessments has been made that has not been paid; and no such return contains any of the Sharesmisstatement or conceals any statement that should have been included therein.
Appears in 1 contract
Samples: Asset Purchase Agreement
