VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 The Vendor warrants and represents to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that: (a) on Closing, the Vendor will be the registered holder and beneficial owner of the Assets, free and clear of all liens, except for the Permitted Liens listed in Schedule "B" attached hereto; (b) no Party has any agreement, right or option, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option to purchase or otherwise acquire the Assets; (c) the Vendor has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the Assets; (d) the Vendor is a company duly incorporated, validly existing and in good standing, under the laws of the state of New Hampshire; (e) Xxx Xxxxx is the sole shareholder of the all of the issued and outstanding shares of the Vendor; (f) the Vendor owns and possesses and has good and marketable title to and possession of all the Assets free and clear of all liens, except the Permitted Liens; (g) the Vendor holds all licences and permits required for the uses to which the Assets have been or may be put and all such licences and permits are in good standing and the conduct and uses of the same by the Vendor are in compliance with all laws, zoning and other bylaws, building and other restrictions, rules, regulations and ordinances applicable to the Vendor or the Assets, and neither the execution and delivery of this Agreement nor the completion of the purchase and sale hereby contemplated will give any person the right to terminate or cancel the said licences or permits or affect such compliance; (h) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not: (i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Assets are subject or constitute or result in a default under any agreement, contract or commitment to which the Vendor is a party, (ii) give to any Party any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any agreement, contract, or commitment relating to the Assets to which the Vendor is a party including the Contracts and the Permitted Liens, or (iii) give to any government or governmental authority of the United States of America or any State or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor and which is necessary or desirable in connection with the conduct and operation of and the ownership or use of the Assets; (i) the Vendor has not experienced nor, to the knowledge of the Vendor, has there been any occurrence or event which has had, or might reasonably be expected to have, a materially adverse effect on the Assets; (j) the Vendor does not have any contract, agreement, undertaking or arrangement, whether oral, written or implied, whatsoever relating to or affecting the conduct of the Assets or for the purchase, sale or lease of any of the Assets other than the Contracts and the Permitted Liens; (k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Vendor threatened against or affecting the Assets at law or in equity or before or by the regulatory authorities or any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency; (l) the Vendor: (i) is not in breach of any of the terms, covenants, conditions, or provisions of, is not in default under, and has not done or omitted to do anything which, with the giving of notice or lapse of time or both, would constitute a breach of or a default under any Contract relating to the Assets, (ii) is not in violation of nor is any present use by the Vendor of any Assets in violation of or contravention of any applicable law, statute, order, rule or regulation, or (iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmental, or other authority or arbitrator by which the Assets are subject; and the Vendor has not received notice that any default, breach, or violation is being alleged; (m) reasonable wear and tear excepted, the Assets are in good working order and in a functional state of repair and to the knowledge of the Vendor, there are no latent defects; and (n) the Vendor has maintained the Assets in good condition and has made all necessary repairs and replacements thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bentley Communications Corp/De)
VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 The Vendor warrants 5.1 Each of the Vendors represent, warrant and represents covenant on behalf of each of themselves only and on behalf of no other partners, limited or general, to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement Lari and in concluding the purchase and sale contemplated herein, thatLari Co. as follows:
(a) on Closing, each of the Vendor will be Vendors is the registered holder and beneficial owner of those number of limited partnership units of one or more of the Assets, Partnerships as set forth beside each of their names in Schedule A and Schedule `E";
(b) all of the Interests are validly issued and outstanding as fully paid and non-assessable in the limited partnership units of the Partnerships and are free and clear of all liens, except for the Permitted Liens listed in Schedule "B" attached hereto;
(b) no Party has any agreement, right or option, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option to purchase or otherwise acquire the Assetscharges and encumbrances;
(c) the Vendor Purchaser is not indebted to any of the Vendors and none of the Vendors is indebted to the Purchaser;
(d) each of the Vendors has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the Assets;
(d) Interests to the Vendor is a company duly incorporated, validly existing and in good standing, under the laws of the state of New HampshirePurchaser;
(e) Xxx Xxxxx is the sole shareholder none of the all Vendors has previously entered into a binding agreement for the sale of, or the granting of the issued and outstanding shares of the Vendoran option to purchase their respective Interests;
(f) none of the Vendor owns and possesses and Vendors has good and marketable title to and possession of all the Assets free and clear of all liensrelied on any representations, except the Permitted Liensunderstandings or other inducements not expressly set forth in this Agreement;
(g) the Vendor holds all licences and permits required for the uses to which the Assets have been or may be put and all such licences and permits are in good standing and the conduct and uses each of the same Vendors has been fully advised by independent legal counsel concerning the Vendor are in compliance with all laws, zoning terms and other bylaws, building and other restrictions, rules, regulations and ordinances applicable to the Vendor or the Assets, and neither the execution and delivery effect of this Agreement nor the completion of the purchase and sale hereby contemplated will give any person the right to terminate or cancel the said licences or permits or affect such complianceAgreement;
(h) each of the making of Vendors enter into this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with voluntarily, without duress or result in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Assets are subject or constitute or result in a default under any agreement, contract or commitment to which the Vendor is a party,
(ii) give to any Party any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any agreement, contract, or commitment relating to the Assets to which the Vendor is a party including the Contracts and the Permitted Liens, or
(iii) give to any government or governmental authority of the United States of America or any State or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor and which is necessary or desirable in connection with the conduct and operation of and the ownership or use of the Assetsundue influence;
(i) the Vendor has not experienced nor, to the knowledge each of the VendorVendors has the legal capacity, has there been any occurrence or event which has had, or might reasonably power and authority to hold the Lari Shares and the Note to be expected to have, a materially adverse effect owned by them on the AssetsClosing Date (the "Securities");
(j) the Vendor does not have any contract, agreement, undertaking or arrangement, whether oral, written or implied, whatsoever relating to or affecting the conduct each of the Assets or Vendors acknowledge that Lari Co. and Lari are newly formed companies which were formed in part for the purchasepurpose of acquiring the Interests and that the Vendors have not been provided with any offering memorandum or similar disclosure document, sale or lease of any including financial information, in respect of the Assets other than the Contracts current or proposed business activities of Lari Co. and the Permitted LiensLari;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge each of the Vendor threatened against or affecting Vendors is accepting the Assets at law or Securities as the Purchase Price as set out in equity or before or by subsection 3 only for investment purposes on their own account and not for the regulatory authorities or purpose of selling the Securities in connection with any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency;
(l) the Vendor:
(i) is not in breach of any distribution of the termsSecurities. Each of the Vendors acknowledge that the Securities are subject to resale restrictions and, covenants, conditions, or provisions of, is not in default under, and has not done or omitted to do anything which, with the giving of notice or lapse of time or both, would constitute a breach of or a default under any Contract relating to the Assets,
(ii) is not in violation of nor is any present use by the Vendor of any Assets in violation of or contravention of any applicable law, statute, order, rule or regulation, or
(iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmental, or other authority or arbitrator by which the Assets are subject; and the Vendor has not received notice that any default, breach, or violation is being alleged;
(m) reasonable wear and tear exceptedfor this reason, the Assets are Securities shall display the legend, substantially in good working order and in a functional state of repair and to the knowledge of the Vendor, there are no latent defects; and
(n) the Vendor has maintained the Assets in good condition and has made all necessary repairs and replacements thereto.form as follows:
Appears in 1 contract
Samples: Interest Purchase Agreement (Neptune Society Inc/Fl)
VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 5.1 The Vendor represents, warrants and represents covenants to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, thatas follows:
(a) on Closing, the Vendor will be is the registered holder and beneficial owner of the Assets, Shares;
(b) the Shares are validly issued and outstanding as fully paid and non-assessable in the capital of the Company and are free and clear of all liens, except for the Permitted Liens listed in Schedule "B" attached hereto;
(b) no Party has any agreement, right or option, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option to purchase or otherwise acquire the Assetscharges and encumbrances;
(c) the Vendor has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the AssetsShares to the Purchaser;
(d) the Vendor is has not previously entered into a company duly incorporatedbinding agreement for the sale of, validly existing and in good standing, under or the laws granting of an option to purchase the state of New HampshireShares;
(e) Xxx Xxxxx the Vendor is not indebted to the sole shareholder of Company and the all of the issued and outstanding shares of Company is not indebted to the Vendor;
(f) the Vendor owns and possesses and has good and marketable title to and possession of all the Assets free and clear of all liensnot relied on any representations, except the Permitted Liensunderstandings or other inducements not expressly set forth in this Agreement;
(g) the Vendor holds all licences has been fully advised by independent legal counsel concerning the terms and permits required for the uses to which the Assets have been or may be put and all such licences and permits are in good standing and the conduct and uses of the same by the Vendor are in compliance with all laws, zoning and other bylaws, building and other restrictions, rules, regulations and ordinances applicable to the Vendor or the Assets, and neither the execution and delivery effect of this Agreement nor the completion of the purchase and sale hereby contemplated will give any person the right to terminate or cancel the said licences or permits or affect such complianceAgreement;
(h) the making of Vendor enters into this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with voluntarily, without duress or result in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Assets are subject or constitute or result in a default under any agreement, contract or commitment to which the Vendor is a party,
(ii) give to any Party any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any agreement, contract, or commitment relating to the Assets to which the Vendor is a party including the Contracts and the Permitted Liens, or
(iii) give to any government or governmental authority of the United States of America or any State or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor and which is necessary or desirable in connection with the conduct and operation of and the ownership or use of the Assetsundue influence;
(i) the Vendor has not experienced northe legal capacity, power and authority to hold the knowledge of Lari Shares and the VendorNote (collectively, has there been any occurrence or event which has had, or might reasonably be expected the "Securities") to have, a materially adverse effect bc owned by her on the AssetsClosing Date;
(j) the Vendor does is accepting the Securities as the Purchase Price as set out in Subsection 3(b) only for investment purposes on her own account and not have for the purpose of selling the Securities in connection with any contract, agreement, undertaking or arrangement, whether oral, written or implied, whatsoever relating to or affecting the conduct distribution of the Assets or Securities. The Vendor acknowledges that the Lari Shares are subject to resale restrictions and, for this reason, shall display the purchaselegend, sale or lease of any of substantially in the Assets other than the Contracts and the Permitted Liens;form as follows: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT'). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR RULE 144 UNDER THE SECURITIES ACT, IF APPLICABLE, OR (D) IN A TRANSACTION THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT PRIOR TO SUCH SALE THE CORPORATION SHALL HAVE RECEIVED AN OPINION OF COUNSEL OF RECOGNIZED STANDING, IN FORM AND SUBSTANCE SATISFACTORY TO IT, AS TO THE AVAILABILITY OF AN EXEMPTION."
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Vendor threatened against or affecting acknowledges that the Assets at law or in equity or before or Lari Shares to be received by the regulatory authorities Vendor on the Closing Date were not advertised in printed media of general and regular paid circulation, radio or any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agencytelevision;
(l) the Vendor:Vendor is an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (U.S.); and
(im) the Vendor is not in a resident at the following address: 000 Xxxxxx Xxxxxx Xxx Xxxxxxx, XX 00000
(n) The Vendor will indemnify the Purchaser against any loss or damage sustained by the Purchaser, directly or indirectly, by reason of a breach of any of the terms, covenants, conditions, warranties or provisions of, representations set forth in this Section 5. The Vendor acknowledges that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions of this Agreement and that no information which is not in default under, and has not done now known or omitted to do anything which, with the giving of notice or lapse of time or both, would constitute a breach of or a default under any Contract relating which may hereafter become known to the Assets,Purchaser or its professional advisers will limit or extinguish the obligation to indemnify hereunder.
(iio) is not The representations, warranties, covenants and agreements contained in violation the Agreement and in any certificates and documents delivered in connection herewith will be true at and as of nor is the Closing Date and will survive the Closing Date, the purchase and sale contemplated herein and any present use by the Vendor re-organization or amalgamation of any Assets in violation of or contravention of any applicable law, statute, order, rule or regulation, or
(iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmental, or other authority or arbitrator by which the Assets are subject; and the Vendor has not received notice that any default, breach, or violation is being alleged;
(m) reasonable wear and tear excepted, the Assets are in good working order and in a functional state of repair and to the knowledge of the Vendor, there are no latent defects; and
(n) the Vendor has maintained the Assets in good condition and has made all necessary repairs and replacements theretoparty hereto.
Appears in 1 contract
VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 The Vendor warrants 5.1 Each of the Vendors represent, warrant and represents covenant on behalf of each of themselves only and on behalf of no other partners, limited or general, to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement Lari and in concluding the purchase and sale contemplated herein, thatLari Co. as follows:
(a) on Closing, each of the Vendor will be Vendors is the registered holder and beneficial owner of those number of limited partnership units of the Assets, Partnership as set forth beside each of their names in Schedule "A" and Schedule "E";
(b) all of the Interests are validly issued and outstanding as fully paid and non-assessable in the limited partnership units of the Partnership and are free and clear of all liens, except for the Permitted Liens listed in Schedule "B" attached hereto;
(b) no Party has any agreement, right or option, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option to purchase or otherwise acquire the Assetscharges and encumbrances;
(c) the Vendor Purchaser is not indebted to any of the Vendors and none of the Vendors is indebted to the Purchaser;
(d) each of the Vendors has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the Assets;
(d) Interests to the Vendor is a company duly incorporated, validly existing and in good standing, under the laws of the state of New HampshirePurchaser;
(e) Xxx Xxxxx none of the Vendors has previously entered into a binding agreement for the sale of, or the granting of an option to purchase their respective Interests;
(f) none of the Vendors has relied on any representations, understandings or other inducements not expressly set forth in this Agreement;
(g) each of the Vendors has been fully advised by independent legal counsel concerning the terms and effect of this Agreement;
(h) each of the Vendors enter into this Agreement voluntarily, without duress or undue influence;
(i) each of the Vendors has the legal capacity, power and authority to hold the Lari Shares and the Note to be owned by them on the Closing Date (the "Securities");
(j) each of the Vendors acknowledge that Lari Co. and Lari are newly formed companies which were formed in part for the purpose of acquiring the Interests and that the Vendors have not been provided with any offering memorandum or similar disclosure document, including financial information, in respect of the current or proposed business activities of Lari Co. and Lari,;
(k) each of the Vendors is accepting the Securities as the Purchase Price as set out in subsection 3 only for investment purposes on their own account and not for the purpose of selling the Securities in connection with any distribution of the Securities. Each of the Vendors acknowledge that the Securities are subject to resale restrictions and, for this reason, the Securities shall display the legend, substantially in the form as follows: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR RULE 144 UNDER THE SECURITIES ACT, IF APPLICABLE, OR (D) IN A TRANSACTION THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT [Initials] PRIOR TO SUCH SALE THE CORPORATION SHALL HAVE RECEIVED AN OPINION OF COUNSEL OF RECOGNIZED STANDING, IN FORM AND SUBSTANCE SATISFACTORY TO IT, AS TO THE AVAILABILITY OF AN EXEMPTION."
(1) each of the Vendors acknowledge that the Securities to be received by them on the Closing Date were not advertised in printed media of general and regular paid circulation, radio or television;
(m) each of the Vendors is an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (U.S.); and
(n) the Vendors are resident at the addresses set forth beside their names in Schedule "A" and Schedule "E".
5.2 Each of the Vendors indemnify the Purchaser against any loss or damage sustained by the Purchaser, directly or indirectly, by reason of a breach of their respective warranties or representations (and not the warranties and representations of others) set forth in this Section 5. Each of the Vendors acknowledge that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions of this Agreement and that no information which is now known or which may hereafter become known to the Purchaser or its professional advisers will limit or extinguish the obligation to indemnify hereunder.
5.3 The respective representations, warranties, covenants and agreements of the parties hereto, which are contained in this Agreement and in any certificates and documents delivered in connection herewith will be true at and as of the Closing Date and will survive the Closing Date, the purchase and sale contemplated herein and any re-organization or amalgamation of any party hereto 6 CONDITIONS OF CLOSING The obligation of the Purchaser, Lari Co. and Lari to complete the sale and purchase of the Interests is subject to the following terms and conditions for the exclusive benefit of the Purchaser, Lari Co and Lari, to be fulfilled or performed at or prior to the Closing Date or said terms and conditions may be waived by the Purchaser, Lari Co. and Lari at their sole discretion:
(a) The transactions contemplated in the Share Purchase Agreements have been completed and Lari Co is the sole shareholder registered and beneficial owner of the all of the issued and outstanding shares of the VendorPurchaser;
(fb) Each of the Vendor owns Vendors has entered into an escrow arrangement with the Escrow Agent on terms and possesses conditions which are satisfactory to the Purchaser, Lari Co. and has good and marketable title to and possession of all the Assets free and clear of all liens, except the Permitted LiensLari;
(gc) the Vendor holds all licences and permits required for the uses to which the Assets have been or may be put and all such licences and permits are in good standing and the conduct and uses Each of the same by Vendors has executed a Certificate of Accredited Investor in the Vendor are in compliance with all laws, zoning and other bylaws, building and other restrictions, rules, regulations and ordinances applicable form attached as Schedule "C" to the Vendor or the Assetsthis Agreement, and neither the execution and delivery of this Agreement nor the completion [Initials]
(d) Each of the purchase and sale hereby contemplated will give any person Vendors listed in Schedule "A" has executed a release agreement in the right form attached as Schedule "D" to terminate or cancel the said licences or permits or affect such compliance;this Agreement.
(he) the making of this Agreement and the completion Each of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result Vendors listed in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, Schedule "E" has executed release agreements attached as Schedule "F" to which the Assets are subject or constitute or result in a default under any agreement, contract or commitment to which the Vendor is a party,
(ii) give to any Party any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any agreement, contract, or commitment relating to the Assets to which the Vendor is a party including the Contracts and the Permitted Liens, or
(iii) give to any government or governmental authority of the United States of America or any State or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor and which is necessary or desirable in connection with the conduct and operation of and the ownership or use of the Assets;
(i) the Vendor has not experienced nor, to the knowledge of the Vendor, has there been any occurrence or event which has had, or might reasonably be expected to have, a materially adverse effect on the Assets;
(j) the Vendor does not have any contract, agreement, undertaking or arrangement, whether oral, written or implied, whatsoever relating to or affecting the conduct of the Assets or for the purchase, sale or lease of any of the Assets other than the Contracts and the Permitted Liens;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Vendor threatened against or affecting the Assets at law or in equity or before or by the regulatory authorities or any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency;
(l) the Vendor:
(i) is not in breach of any of the terms, covenants, conditions, or provisions of, is not in default under, and has not done or omitted to do anything which, with the giving of notice or lapse of time or both, would constitute a breach of or a default under any Contract relating to the Assets,
(ii) is not in violation of nor is any present use by the Vendor of any Assets in violation of or contravention of any applicable law, statute, order, rule or regulation, or
(iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmental, or other authority or arbitrator by which the Assets are subject; and the Vendor has not received notice that any default, breach, or violation is being alleged;
(m) reasonable wear and tear excepted, the Assets are in good working order and in a functional state of repair and to the knowledge of the Vendor, there are no latent defects; and
(n) the Vendor has maintained the Assets in good condition and has made all necessary repairs and replacements theretothis Agreement.
Appears in 1 contract
Samples: Interest Purchase Agreement (Neptune Society Inc/Fl)
VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 3.1 The Vendor warrants and represents to the PurchaserSSPI, with the intent that the Purchaser SSPI will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, thatthat on the date hereof:
(a) on Closing, the Vendor will be is the registered holder and beneficial owner of the Assets, Vendor's Shares free and clear of all liensLiens, except for and the Permitted Liens listed Vendor has no interest, legal or beneficial, direct or indirect, in Schedule "B" attached heretoany shares of, or the assets or business of, the Company other than the Vendor's Shares, the Management Contract and any interest arising from the Vendor's beneficial ownership interest in Esmeralda LLC;
(b) the Vendor's Shares represent all of the xxxxxx xnd outstanding shares of the Company;
(c) with the exception of this Agreement, no Party party has any agreement, right or option, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option option:
(i) to require the Company to issue or allot any further or other shares in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in the capital of the Company;
(ii) to require the Company to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital; or
(iii) to purchase or otherwise acquire any shares in the Assetscapital of the Company;
(cd) the Vendor has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the AssetsVendor's Shares to SSPC;
(de) the Vendor Company is a company duly incorporated, validly existing and in good standing, standing under the laws of the state State of New Hampshire;
(e) Xxx Xxxxx is the sole shareholder of the all of the issued and outstanding shares of the VendorOklahoma;
(f) the Vendor owns directors and possesses officers of the Company are as described in Schedule "E";
(g) all alterations to the constating documents of the Company since its incorporation have been duly approved by the shareholders of the Company and registered with the appropriate authorities where required;
(h) to the Vendor's knowledge, the Company is duly registered to carry on business in all jurisdictions in which the Company carries on business except where the failure to so register would not have a Material Adverse Effect on the Company;
(i) to the Vendor's knowledge, the Company has good the power, authority and marketable title capacity to and possession of all carry on its business as presently conducted by it;
(j) the Assets Company holds the 10.944% participating interest under the Association Contracts, free and clear of all liens, except the Permitted Liens;
(gk) the Vendor Company carries on no other business other than the holding of the 10.944% participating interest under the Association Contracts and acting as operator of the Properties;
(l) to the Vendor's knowledge, the Association Contract is in good standing and remains in full force and effect;
(m) to the Vendor's knowledge, the Company holds all licences and permits required for the uses to which conduct in the Assets have been or may be put ordinary course of its business as presently conducted by it and all such licences and permits are in good standing and the conduct and uses of the same by the Vendor Company are in compliance with all laws, zoning and other bylaws, building and other restrictions, rules, regulations and ordinances applicable to the Vendor Company and its respective business, save and except for breaches which do not have a Material Adverse Effect on the Company or its business as presently conducted and with the Assetsexception that no such representation and warranty is given with respect to any permit, and neither license, contract consent or authority granted under or in connection with the execution and delivery of this Agreement nor the completion of the purchase and sale hereby contemplated will give any person the right to terminate or cancel the said licences or permits or affect such complianceAssociation Contracts;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions, or provisions of the constating documents of the Company;
(ii) to the Vendor's knowledge, conflict with or result in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Assets are Company or the Vendor is subject or constitute or result in a default under any agreement, contract or commitment to which the Company or the Vendor is a party,party with the exception that no such representation and warranty is made with respect to or in connection with the Association Contracts;
(iiiii) to the Vendor's knowledge, give to any Party person any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any understanding, agreement, contract, or commitment relating to the Assets commitment, written, oral or implied, to which the Vendor Company is a party including with the Contracts exception that no such representation and warranty is made with respect to the Permitted Liens, orAssociation Contracts;
(iiiiv) to the Vendor's knowledge, give to any government or governmental authority of the United States of America or any State or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor Company and which is necessary or desirable in connection with the conduct and operation of the businesses currently conducted by the Company with the exception that no such representation and warranty is given with respect to any permit, license, contract or authority granted under or in connection with the Association Contracts;
(v) to the Vendor's knowledge, constitute a default by the Company or an event which, with the giving of notice or lapse of time or both, might constitute an event of default or non-observance under any agreement, contract, indenture or other instrument relating to any indebtedness of any of the Company which would give any party the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture, or other instrument; so as to have a Material Adverse Effect on the Company;
(o) the Financial Statements were prepared on a cash basis in accordance with U.S. tax regulations applied on a basis consistent with prior years and are true and correct in every material respect;
(p) to the Vendor's knowledge, there is no indebtedness of the Company, including to the Vendor, which is not disclosed or reflected in the Company's Financial Statements other than as detailed in Schedule "F";
(q) to the Vendor's knowledge, the Company has been assessed for income tax for all years to and including the most recent fiscal year end of the Company to which the Financial Statements are made up, and the ownership Company has withheld and remitted to all applicable tax collecting authorities all amounts required to be remitted to all tax collecting authorities respecting payments to employees or use to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable as of the Assetsdate hereof;
(r) to the Vendor's knowledge, all tax returns and reports of the Company required by law to be filed prior to the date hereof including all income tax returns and all other corporate tax returns required to be filed with any governmental taxing authority or board have been filed and are true, complete and correct, and all taxes and other government charges including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licenses required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Financial Statements;
(s) to the Vendor's knowledge, adequate provision has been made for taxes payable by the Company which are not yet due and payable and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment or reassessment of any tax return by any taxing authority or for the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Company, and to the Vendor's knowledge, there are no contingent tax liabilities or any grounds which would prompt a re-assessment;
(t) to the Vendor's knowledge, no authorization, approval, order, license, permit or consent of any governmental authority, regulatory body or court, and no registration, declaration or filing by the Vendor or the Company with any such governmental authority, regulatory body or court remains outstanding in order for the Vendor to complete the within purchase and sale, to duly perform and observe the terms and provisions of this Agreement, and to render this Agreement legal, valid, binding and enforceable in accordance with its terms with the exception that no representation and warranty is given as to any authorizations, approvals, orders, licenses, permits or consents granted under or in connection with the Association Contracts;
(u) the Vendor does not have any specific information relating to the Company which is not generally known and which to the knowledge of the Vendor has not been disclosed to, SSPC or SSPI and which if known could reasonably be expected to have a Material Adverse Effect on the Company;
(i) to the Vendor has Vendor's knowledge, the business of the Company as currently carried on by it, and in particular the conduct of the Company as operator of the Properties, 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 except where the failure to comply would not experienced norhave a Material Adverse Effect on the Company;
(ii) to the Vendor's knowledge, the Company' business, assets or properties are not subject to any judicial or administrative proceeding alleging the violation of any applicable environmental, health or safety law, judgment, decree, order, injunction, rule, statute or regulation except where such proceeding would not have a Material Adverse Effect on the Company;
(w) since the date of the Company's most recent Financial Statements, to the knowledge of the Vendor's knowledge, there has there not been any occurrence or event which has had, or might reasonably be expected to have, a materially adverse effect Material Adverse Effect on the Assetsbusiness of the Company as currently carried on or the results of its operations;
(jx) to the Vendor Vendor's knowledge, other than as disclosed in Schedule "G" hereto, the Company does not have any material contract, agreement, undertaking or arrangement, whether oral, written or implied, which cannot be terminated on not more than one month's notice and the Company does not have any outstanding material agreements, contracts or commitments (whether written or oral) whatsoever relating to or affecting the conduct of the Assets its business as currently carried on or any of its assets or for the purchase, sale or lease of any its assets with the exception of the Assets other than the Contracts and the Permitted Liensthis Agreement;
(ky) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Vendor threatened against or affecting the Assets Company at law or in equity or before or by the regulatory authorities or any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agencyagency and the Company is not a party to or threatened with any litigation which in either case would have a Material Adverse Effect on the Company;
(lz) [intentionally left blank]
(aa) the Vendor:
(i) is Company has not in breach guaranteed, or agreed to guarantee, any indebtedness or other obligation of any party, except in the ordinary course of its business as operator of the termsProperties and except as described in the Financial Statements, covenants, conditions, or provisions of, is not in default under, and has not done or omitted to do anything which, with under the giving of notice or lapse of time or both, would constitute a breach of or a default under any Contract relating to the Assets,
(ii) is not in violation of nor is any present use by the Vendor of any Assets in violation of or contravention of any applicable law, statute, order, rule or regulation, or
(iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmental, or other authority or arbitrator by which the Assets are subject; and the Vendor has not received notice that any default, breach, or violation is being alleged;
(m) reasonable wear and tear exceptedAssociation Contracts, the Assets are JOA and under a trust agreement with SSPC pertaining to SSPC's interest in good working order and in a functional state of repair and to the knowledge of the Vendor, there are no latent defects; and
(n) the Vendor has maintained the Assets in good condition and has made all necessary repairs and replacements thereto.Association Contracts;
Appears in 1 contract
Samples: Share Purchase Agreement (Seven Seas Petroleum Inc)
VENDOR'S WARRANTIES AND REPRESENTATIONS. 4.1 5.1 The Vendor warrants Vendors jointly and represents severally warrant and represent to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that:
(a) the Vendors' Shares represent all of the issued and outstanding shares of the Companies;
(b) the Vendors are or will be on Closingthe Closing Date, the Vendor will be the registered holder holders and beneficial owner owners of the AssetsVendors' Shares, free and clear of all liensLiens and the Vendors have no interest, except for the Permitted Liens listed legal or beneficial, direct or indirect, in Schedule "B" attached hereto;
(b) no Party has any agreement, right or option, consensual or arising by law, present or future, contingent or absoluteshares of, or capable of becoming an agreementthe assets or business of, right or option the Companies other than the Vendors' Shares and the Vendors' interest, to purchase or otherwise acquire the Assetsextent applicable, in the Affiliates Loans;
(c) none of the Vendor Lenders have assigned or encumbered any of their right, title and interest in and to the Affiliates Loans and the Lenders are entitled to receive all payments on the same;
(d) the particulars in Section 1.1(d) are a full, complete and accurate description of the Affiliates Loans, and the Affiliates Loans are in good standing and NetRover Inc. has no right of set off relating thereto;
(e) the Vendors have the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth and will on the Closing Date have the rights to transfer the legal and beneficial title and ownership of the AssetsVendors' Shares to the Purchaser; and
(f) the Vendors are not non-residents of Canada within the meaning of Section 116 of the Income Tax Act, R.S.C. 1985, Chapter 1 (5th Supp.) as amended -------------- (the "Income Tax Act"). ----------------
5.2 The Vendors warrant and represent to the Purchaser with respect to each Company, with the intent that the Purchaser will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that:
(a) the authorized and issued capital of the Company is as described in Schedule F;
(db) no person has any agreement, right, option or privilege, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, right or option:
(i) to require the Company to issue any further or other shares in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in the capital of the Company;
(ii) for the issue or allotment of any of the authorized but unissued shares in the capital of the Company;
(iii) to require the Company to purchase, redeem or otherwise acquire any of the issued and outstanding shares in the capital of the Company;
(iv) to purchase or otherwise acquire any shares in the capital of the Company; or
(v) which is capable of becoming an agreement for the acquisition of any of the Business Assets.
(c) the Vendor Company is a company duly incorporated, validly existing and in good standing, standing under the laws of the state province of New HampshireOntario and is and always has been, since the date of its incorporation, a "private company" as that term is defined in the Securities Act (Ontario); -------------
(d) the directors and officers of the Company are identified in Schedule G;
(e) Xxx Xxxxx is all alterations to the sole shareholder Bylaws and the Articles of Incorporation of each of the all Companies since its incorporation, have been duly approved by the shareholders of the issued Company and outstanding shares registered with the Corporations Branch of the VendorMinistry of Consumer and Commercial Relations of the province of Ontario;
(f) the Vendor Company now is and has since its incorporation been a "Canadian controlled private corporation" within the meaning of the Income Tax Act --------------- (Canada);
(g) the Company carries on the Business in the Province of Ontario does not carry on any business in any other province or territory of Canada or in any other country and does not carry on any business other than the Business;
(h) the Company has the power, authority and capacity to carry on the Business as presently conducted by it;
(i) the Company has the power, authority and capacity to own and use all of the Business Assets;
(j) the Company owns and possesses all right, title and interest in, and has good and marketable title to and possession of of, all the Business Assets free and clear of all liens, except Liens (with the exceptions of the Permitted Liens, those Business Assets subject to the leases included in the Material Contracts and the Excluded Assets) and neither the Vendors nor the Company has received notice from any third party claiming an interest in and to the Business Assets other than an interest which constitutes a Permitted Liens, and neither the Vendors nor the Company has any reason to believe any such claim may be made;
(gk) the Vendor Company has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositaries except as set out in Schedule H, which Schedule is a true and complete list showing the name of each bank, trust company or similar financial institution in which the Company has accounts, deposits or safety deposit boxes and the names of all persons authorized to draw thereon or have access thereto;
(l) the Company does not own, possess or use any asset other than the Business Assets and does not have any interest in the assets or business of any other person, with the exception of the Excluded Assets;
(m) the Company holds all licences and permits required for the conduct in the ordinary course of the Business and for the uses to which the Business Assets have been or may be put and all such licences and permits are in good standing and the conduct and uses of the same by the Vendor are Company is in compliance with all laws, zoning and other bylaws, building and other restrictions, rules, regulations and ordinances applicable to the Vendor Company, the Business or the Business Assets, and neither the execution and delivery of this Agreement nor the completion of the purchase and sale hereby contemplated will give any person the right to terminate or cancel the said licences or permits or affect such compliance;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions, or provisions of the ByLaws or Articles of Incorporation of the Company;
(ii) conflict with or result in a breach of or violate any of the terms, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Assets are Company or the Vendor is subject or constitute or result in a default under any agreement, contract or commitment to which the Company or the Vendor is a party,;
(iiiii) subject to obtaining the Consents, give to any Party person any remedy, cause of action, right of termination, cancellation or acceleration in or with respect to any agreement, contract, or commitment relating to the Assets to which the Vendor Company is a party including the Contracts and the Permitted Liens, or;
(iiiiv) give to any government or governmental authority of the United States of America Canada or any State Province of Canada or any regional district, district or municipality or any subdivision thereof, including any governmental department, commission, bureau, board, or administrative agency any right of termination, cancellation, or suspension of, or constitute a breach of or result in a default under any permit, license, control, or authority issued to the Vendor Company and which is necessary or desirable in connection with the conduct and operation of the Business and the ownership ownership, leasing or use of the Business Assets;; or
(iv) subject to obtaining the Vendor has not experienced norConsents, to the knowledge of the Vendor, has there been any occurrence or event which has had, or might reasonably be expected to have, constitute a materially adverse effect on the Assets;
(j) the Vendor does not have any contract, agreement, undertaking or arrangement, whether oral, written or implied, whatsoever relating to or affecting the conduct of the Assets or for the purchase, sale or lease of any of the Assets other than the Contracts and the Permitted Liens;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Vendor threatened against or affecting the Assets at law or in equity or before or default by the regulatory authorities Company or any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency;
(l) the Vendor:
(i) is not in breach of any of the terms, covenants, conditions, or provisions of, is not in default under, and has not done or omitted to do anything an event which, with the giving of notice or lapse of time or both, would might constitute a breach an event of default or a default non-observance under any Contract agreement, contract, indenture or other instrument relating to any Indebtedness of the Assets,
(ii) is not in violation of nor is Company which would give any present use by person the Vendor right to accelerate the maturity for the payment of any Assets in violation of or contravention of any applicable lawamount payable under that agreement, statutecontract, order, rule or regulation, or
(iii) is not in breach or default under any judgment, injunction or other order or aware of any judicial, administration, governmentalindenture, or other authority or arbitrator by which instrument including the Assets are subject; Contracts and the Vendor has not received notice that any default, breach, or violation is being allegedPermitted Liens;
(mo) reasonable wear the Financial Statements were prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior reporting periods, are true and tear exceptedcorrect in every material respect and present fairly and accurately the financial condition and position of the Company as at the Statement Date and the results of the operations of the Company;
(p) the provisions for doubtful accounts receivable of the Company as recorded in the Financial Statements are, and collections since the Assets Statement Date have proven them to be, adequate;
(q) the Accounts Receivable of the Company are bona fide, good and collectable without set-off or counterclaim save and except as described in good working order Schedule A;
(r) there is no Indebtedness of the Company which is not disclosed or reflected in the Financial Statements except Accounts Payable;
(s) the Company has been assessed for federal and provincial income tax for all years to and including fiscal year 1998, and the Company has withheld and remitted to Revenue Canada or other applicable tax collecting authority except those items listed and accrued in a functional state the Company's financial statement all amounts required to be remitted to Revenue Canada or other tax collecting authority respecting payments to employees or to non-residents, or otherwise and has paid all instalments of repair corporate taxes due and payable;
(t) all tax returns and reports of the Company required by law to be filed prior to the Execution Date (including all federal and provincial income tax returns, Workers' Compensation Board returns, and corporation capital tax returns) have been filed and are true, complete and correct, and all taxes and other government charges (including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licenses) have been accrued in the Financial Statements;
(u) adequate provision has been made for taxes payable by the Company for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Company, and to the knowledge of the VendorVendors, the Company and their officers, directors or employees there are no latent defects; andcontingent tax liabilities or any grounds which would prompt a re-assessment, including aggressive treatment of income and expenses in filing earlier tax returns;
(nv) the Vendor has maintained the Assets in good condition and Company has made all necessary repairs elections required to be made under the Income ------ Tax Act of Canada or other tax legislations in connection with any distributions ------- by the Company and replacements thereto.all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods;
(w) the Company has not prior to the Execution Date:
(i) made any election under Section 85 of the Income Tax Act of Canada with -------------- respect to the acquisition or disposition of any property;
(ii) made any election under Section 83 or 196 of the Income Tax Act of -------------- Canada with respect to payment out of the capital dividend account or life insurance capital dividend account of the Company;
(iii) acquired or had the use of any property from a person with whom the Company was not dealing at arm's length, with the exception of Excluded Assets;
(iv) disposed of anything to a person with whom the Company was not dealing at arm's length for proceeds less than or greater than the fair market value thereof; or
(v) discontinued carrying on any business in respect of which non-capital losses were incurred;
(x) with respect to GST:
(i) the Company is registered for GST purposes under the Excise Tax Act -------------- (Canada), Part IX;
(ii) the Company does not have any deferred obligation or liability under any Section of the Excise Tax Act (Canada) except as described in the Financial -------------- Statements in Schedule D hereof;
(iii) the Company has not, prior to the Execution Date:
(1) acquired or had the use of any property from a person with whom it was not dealing at arm's length which may give rise to liability to pay GST; or
(2) disposed of anything to a person with whom the Company was not dealing at arm's length for proceeds less than the fair market value thereof, which may give rise to liability to pay GST;
(iv) except as disclosed in the Financial Statements, as of the Execution Date, the Company has remitted to Revenue Canada Customs, Excise and Taxation when required by law to do so all amounts collected by it on account of GST;
(y) relying upon the Purchaser's representations and warranties with respect to the Investment Canada Act and the Competition Act as set forth in Section 6.1 --------------------- --------------- hereof, no authorization, approval, order, license, permit or consent of any governmental authority, regulatory body or court, and no registration, declaration or filing by the Vendors or the Company with any such governmental authority, regulatory body or court is required in order for the Vendors to complete the contemplated purchase and sale, to duly perform and observe the terms and provisions of this Agreement, and to render this Agreement legal, valid, binding and enforceable in accordance with its terms;
(z) the Vendors do not have any specific information relating to the Company which is not generally known or which has not been disclosed to the Purchaser and which if known could reasonably be expected to have a materially adverse effect on the value of the Vendors' Shares;
(aa) the Business and the Business Assets comply 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;
Appears in 1 contract
