Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable. 8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded. 8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement. 8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement. 8.5 Each of the Sellers undertakes with the Buyer that - (a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and (b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement. 8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand - (a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or (b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading. 8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Liquid Holdings Group LLC), Share Purchase Agreement (Liquid Holdings Group LLC)
Warranties. 8.1 The Sellers represent Partnership Agreement or other mutually agreed upon document will contain representations and warrant jointly warranties by the General Partner, including with respect to matters set forth in the Preliminary Compliance Due Diligence Questionnaire, the Preliminary Legal Due Diligence Questionnaire and severally as otherwise deemed applicable by UST. OPINIONS UST will receive customary opinions from counsel to the Buyer General Partner reasonably satisfactory to UST. OTHER TERM SHEETS The terms and conditions of (a) the investment by UST in Legacy Securities Public-Private Investment Funds (“PPIFs”) formed by selected sponsors and (b) the senior secured credit facilities to be provided by UST to such PPIFs (other than any Publicly Offered PPIF), will be substantially similar in all material respects, except with respect to the terms and conditions set forth under (i) “Affiliates,” “Maximum UST Capital Commitment,” “Diversification and Investment Limitations,” “Relevant Person,” “Key Person” and “Key Person Event” in the terms set out in Schedule 5 Equity Term Sheet and each party acknowledges that the terms of Schedule 5 and this clause 8 are (ii) “Maximum UST Debt Amount” in the circumstances fair Debt Term Sheet, which terms and reasonable.
8.2 conditions may be determined separately with respect to each PPIF. GOVERNING LAW The Warranties are given law of the State of Delaware (subject to matters fully, fairly and accurately disclosed in sufficient detail to enable applicable Federal law). The United States Department of the Buyer to understand their nature and scope Treasury (“UST”) has not participated in the Disclosure preparation of this [offering material] or made any representation regarding, and expressly disclaims any liability or responsibility to any investor in the [Private Vehicle] for, the accuracy, completeness or correctness of any of the materials contained herein. Without limitation of the foregoing, UST does not approve or disapprove of any tax disclosure or advice set forth herein. ***THE FOLLOWING DOES NOT CONSTITUTE A CAPITAL COMMITMENT BY UST*** LEGACY SECURITIES PUBLIC-PRIVATE INVESTMENT PARTNERSHIP SUMMARY OF INDICATIVE TERMS AND CONDITIONS OF UST DEBT1 FINANCING OVERVIEW The Borrower (as defined below) will utilize the proceeds of the Capital Commitments and the Loans (as defined below) to acquire (either directly or through subsidiaries) Eligible Assets. Concurrent with the execution of the Letter of Intent, the Borrower will have the option to elect UST leverage of up to 100% of the Capital Commitments (‘Disclosed’a “Full Turn Election”) but no other information or up to 50% of which the Buyer has actualCapital Commitments (a “Half Turn Election”) of all Partners. If the Borrower makes a Full Turn Election, constructive or imputed knowledge the Warrant Percentage will equal 2.5% and no investigation or enquiry additional debt other than the UST leverage will be permitted. If the Borrower makes a Half Turn Election, the Warrant Percentage will equal 1.5% and additional third party debt will be permitted as described below. If the Borrower has made by or a Full Turn Election, at any time after the Closing Date during the Investment Period, the Borrower may make a Half Turn Election if, concurrently with such election, the Borrower would otherwise be in compliance on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and a pro forma basis with the provisions of section 6(2the Credit Documentation (as defined below) that are applicable when a Half Turn Election is in effect, and the Borrower repays the Loans so that the outstanding Loans do not exceed the amount permitted to be outstanding if a Half Turn Election were then in effect. However, the Warrant Percentage will not be adjusted. The Full Turn Election will not be subsequently available if the Borrower makes a Half Turn Election. If a Half Turn Election is in effect, subject to compliance with the specified incurrence-based leverage test and the specified asset coverage test described below, the Borrower may also finance Eligible Assets using proceeds of borrowings of TALF Debt (as defined below) and proceeds of borrowings of Additional Debt (as defined below) (collectively, “Third Party Debt”). Eligible Assets financed with Third Party Debt must be financed, acquired and held through wholly owned financing subsidiaries of the Law Borrower (“Financing Subsidiaries”), which subsidiaries may be capitalized with proceeds of Property Capital Commitments and the Loans. Third Party Debt will be recourse 1 All capitalized terms used but not defined herein shall have the meaning given to them in the Legacy Securities Public-Private Investment Partnership Summary of Indicative Terms and Conditions (Miscellaneous Provisionsthe “Equity Term Sheet”). solely to the applicable Financing Subsidiary and not to the Borrower or any other Financing Subsidiary. Investment Proceeds held by the Borrower will be allocated in accordance with the Priority of Payments (as defined below) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far waterfall to pay certain expenses, interest on the Loans and subject to compliance with the specified incurrence-based leverage test and the specified asset coverage test described below, during the Investment Period, to acquire (including, if a Half Turn Election is in effect, through contributions to Financing Subsidiaries, to allow Financing Subsidiaries to acquire) additional Eligible Assets or to make distributions to the Partners and repay Loans. After the Investment Period, Investment Proceeds not required to pay interest and specified expenses will be allocated to repay Loans and to make distributions to Partners in accordance with an allocation formula described as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each part of the Warranties is a separate representation or warranty Priority of Payments waterfall. Investment Proceeds received from Investments held by Financing Subsidiaries must be utilized by such entities to repay Third Party Debt to the extent required by the relevant lender and shall not be restricted in its any surplus proceeds, to the extent or application permitted by the terms of any of such Third Party Debt, must be distributed to the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes Borrower to be allocated in accordance with the Buyer that -
(a) each Priority of the Warranties Payments waterfall. Asset coverage shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a be calculated by reference to the Completion Date; and
Market Value (bas defined below) it shall immediately disclose to of all Eligible Assets and Temporary Investments held by the Buyer in writing any matter which becomes known to it before Completion Borrower and which gives rise, or might give rise, to the Market Value of all Eligible Assets and Temporary Investments held by a claim under the Warranties or which would materially affect the willingness Financing Subsidiary net of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs Third Party Debt outstanding at such Financing Subsidiary. A third-party Valuation Agent (as defined below) will be responsible for calculation of the Market Value of Eligible Assets and expenses Temporary Investments on a monthly basis. BORROWER The Partnership (including legal and other professional fees and expensesin such capacity, the costs of management time and all other consequential losses whether directly “Borrower”). ADMINISTRATIVE AGENT AND COLLATERAL AGENT UST or indirectly arising) incurred directly or indirectly by its designee (in such capacities, the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading“Agent”).
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Letter of Intent, Letter of Intent
Warranties. 8.1 The 7.1 Each of the Sellers represent and warrant jointly and severally warrants to the Buyer that except as Disclosed as at Completion each of the Fundamental Warranties is accurate, true and not misleading in relation to themselves
7.2 Each of the Non-New Wave Sellers severally warrant to the Buyer that except as Disclosed as at Completion each Warranty (except the Fundamental Warranties) is true, accurate and not misleading.
7.3 Warranties qualified by the expression ''so far as the Sellers are aware'' or any similar expression qualifying the knowledge of a Seller are deemed to be given to the best of the knowledge, information and belief of each of the Sellers after they have made due and careful enquiries of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇.
7.4 Each of the Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any other Warranty or any other provision in this agreement.
7.5 The only Warranties in connection with the Properties are those contained in the terms set out in Schedule 5 and each party acknowledges that the terms following paragraphs of Part 1 of Schedule 5 and this clause 8 are in the circumstances fair and reasonable6:
7.5.1 Schedule 6 Part 1 -29 (Properties); and
7.5.2 Schedule 6 Part 1 -30 (Environmental).
8.2 The Warranties are given subject to 7.6 Except for the matters fullyDisclosed, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer (or any of its agents or advisers) has knowledge (in each case whether actual, constructive or imputed knowledge and no imputed), or which could have been discovered (whether by investigation made by the Buyer or enquiry made on its behalf), shall prejudice or prevent any Relevant Claim or reduce the amount recoverable under any Relevant Claim. Notwithstanding the forgoing provisions of this Clause the Buyer confirms that it is not aware of any matters that entitle it (or would entitle it) to bring a Relevant Claim.
7.7 The Sellers agree that the supply of any information by or on behalf of the Buyer Company, or any of its employees, directors, agents or officers (Officers) to the Sellers or their advisers in connection with the Warranties, the Disclosure Letter or otherwise shall modify not constitute a warranty, representation or discharge guarantee as to the accuracy of such information in favour of the Sellers’ . The Non-New Wave Sellers unconditionally and irrevocably waive all and any rights and claims that they may have against any of the Company or the Officers on whom they have, or may have, relied in connection with the preparation of the Disclosure Letter, or agreeing the terms of this agreement, and further undertake to the Buyer, the Company, and the Officers not to make any such claims. The New Wave Sellers unconditionally and irrevocably waive all and any rights and claims that they may have against any of the Company or the Officers (with the exception of the Key Sellers in connection with a Fraud Claim) on whom they have, or may have, relied in connection with the preparation of the Disclosure Letter, or agreeing the terms of this agreement, and further undertake to the Buyer, the Company, and the Officers (with the exception of the Key Sellers in connection with a Fraud Claim) not to make any such claims. For the purposes of this clause 7.7, ''Fraud Claim'' shall mean a Relevant Claim which arises or is delayed as a result of the dishonesty, fraud, wilful misconduct or wilful concealment by a Key Seller and for which the Buyer is entitled to bring a claim against the Sellers in accordance with clause 8.16 and where the New Wave Sellers suffer any loss or liability under in connection with such claim
7.8 For the Warranties avoidance of doubt, the Buyer's rights and remedies in respect of any way Relevant Claim shall not be affected by Completion, or any termination of (or the Buyer's failure to terminate) this agreement.
7.9 The Buyer warrants to the Sellers that the execution and delivery of this agreement and the transactions contemplated herein (including, but not limited to, the issue of the Consideration Shares) have, where required, been duly and validly authorised and no other proceedings or actions are necessary to authorise this agreement or to complete the transactions contemplated herein.
7.10 If and to the extent that a liability arises in respect of a Substantiated Claim which is not otherwise excluded pursuant to the provisions of section 6(2) clause 8 (a Claim Liability), the provisions of this clause shall operate to allocate the relevant Claim Liability amongst the Sellers, subject at all times to the Cap. Accordingly the Claim Liability shall:
7.10.1 first, fall to the account of the Law Non-New Wave Sellers, provided that (i) the maximum amount to which the Non-New Wave Sellers shall be obliged to contribute towards the Claim Liability shall be an amount equal to 50 per cent of Property the aggregate unadjusted Cash Consideration actually received by such Non-New Wave Sellers on the Completion Date (Miscellaneous Provisionsafter the amounts payable to New Wave in respect of the purchase of the Preference Shares together with the interest accrued thereon have been settled from the aggregate unadjusted Cash Consideration and excluding any sum in respect of which a set-off or deduction is made from the Retention) ▇▇▇ ▇▇▇▇ (the First Call Cash) and (ii) provided always that the contribution amounts for each Non-New Wave Seller to the Claim Liability shall be strictly made in the proportions by which each Non-New Wave Seller's amount of First Call Cash bears to the aggregate amount of First Call Cash;
7.10.2 second, if and to the extent that the Claim Liability is not settled in full by the First Call Cash, then any such remaining residual Claim Liability shall fall to the account of the Non-New Wave Sellers, who shall be obliged to satisfy such remaining Claim Liability through contributing the proceeds realised (net of expenses) from the sale of Consideration Shares which were issued to them on or shortly after the Completion Date, provided that (i) in satisfying the Claim Liability, the maximum liability of the Non-New Wave Sellers shall be the proceeds (net of expenses) arising from the sale of 37.5 per cent of the aggregate number of Consideration Shares issued to them on or shortly after the Completion Date (the First Call Shares) and (ii) if at such time any or all of the First Call Shares have already been sold, any relevant Non-New Wave Seller shall, subject to (iii), be obliged to contribute such amount of the actual realised proceeds (net of expenses) from the sale of such First Call Shares towards satisfying its proportion of the Claim Liability and (iii) the contributions towards the Claim Liability by each Non-New Wave Seller shall be made strictly by reference to the proportion by which each Non-New Wave Seller's number of Consideration Shares bears to the aggregate number of Consideration Shares issued to the Non-New Wave Sellers;
7.10.3 third, if and to the extent that the Claim Liability is not settled in full by the First Call Cash together with the proceeds realised through the sale of First Call Shares, then any such remaining residual Claim Liability shall fall to the account of the New Wave Sellers, who agree to bear such liability notwithstanding that they may not have provided a warranty or covenant in relation to such matter, or personally been in breach thereof provided that (i) the maximum amount to which the New Wave Sellers shall be obliged to contribute towards the Claim Liability shall be an amount equal to 50 per cent of the aggregate unadjusted Cash Consideration actually received by such Non-New Wave Sellers on the Completion Date (after the amounts payable to New Wave in respect of the purchase of the Preference Shares together with the interest accrued thereon have been settled from the aggregate unadjusted Cash Consideration and excluding any sum in respect of which a set-off or deduction is made from the Retention) (the Second Call Cash) and (ii) provided always that the contribution amounts for each New Wave Seller to the Claim Liability shall be strictly made in the proportions by which each New Wave Seller's amount of Second Call Cash bears to the aggregate amount of Second Call Cash;
7.10.4 fourth, if and to the extent that the Claim Liability is not settled in full by the First Call Cash together with the proceeds realised through the sale of First Call Shares and the Second Call Cash, then any such remaining residual Claim Liability shall fall to the account of the Non-New Wave Sellers, who shall be obliged to satisfy such remaining Claim Liability through contributing the proceeds realised (net of expenses) from the further sale of Consideration Shares which were issued to them on or shortly after the Completion Date, provided that (i) in satisfying the Claim Liability, the maximum liability of the Non-New Wave Sellers shall be the proceeds (net of expenses) arising from the sale of 37.5 per cent of the aggregate number of Consideration Shares issued to them on or shortly after the Completion Date (the Second Call Shares) and (ii) if at such time any or all of the Second Call Shares have already been sold, any relevant Non-New Wave Seller shall, subject to (iii), be obliged to contribute such amount of the actual realised proceeds (net of expenses) from the sale of such Second Call Shares towards satisfying its proportion of the Claim Liability and (iii) the contributions towards the Claim Liability by each Non-New Wave Seller shall be made strictly by reference to the proportion by which each Non-New Wave Seller's number of Consideration Shares bears to the aggregate number of Consideration Shares issued to the Non-New Wave Sellers;
7.10.5 fifth, if and to the extent that the Claim Liability is not settled in full by the First Call Cash, the Second Call Cash and the proceeds realised through the sale of First Call Shares and Second Call Shares, then any such remaining residual Claim Liability shall fall to the account of the New Wave Sellers, who agree to bear such liability notwithstanding that they may not have provided a warranty or covenant in relation to such matter, or personally been in breach thereof, who shall be obliged to satisfy such remaining Claim Liability through contributing the proceeds realised (net of expenses) from the sale of Consideration Shares which were issued to them on or shortly after the Completion Date, provided that (i) in satisfying the Claim Liability, the maximum liability of the New Wave Sellers shall be the proceeds (net of expenses) arising from the sale of 75 per cent of the aggregate number of Consideration Shares issued to them on or shortly after the Completion Date (the Third Call Shares) and (ii) if at such time any or all of the Third Call Shares have already been sold, any relevant New Wave Seller shall, subject to (iii), be obliged to contribute such amount of the actual realised proceeds (net of expenses) from the sale of such Third Call Shares towards satisfying its proportion of the Claim Liability and (iii) the contributions towards the Claim Liability by each New Wave Seller shall be made strictly by reference to the proportion by which each New Wave Seller's number of Consideration Shares bears to the aggregate number of Consideration Shares issued to the New Wave Sellers;
7.10.6 thereafter, if and to the extent that the Claim Liability is not settled in full by the First Call Cash, the Second Call Cash and the proceeds realised through the sale of First Call Shares, Second Call Shares and Third Call Shares then any such remaining residual Claim Liability shall fall to the account of each of the Non-New Wave Sellers on the one hand and the New Wave Sellers, who agree to bear such liability notwithstanding that they may not have provided a warranty or covenant in relation to such matter, or personally been in breach thereof, on the other hand, in equal proportions between each such group, such residual Claim Liability to be satisfied by the entitlements of each group to receive actual payments from the Buyer of Deferred Consideration and each respective group's contribution to be satisfied (i) by way of the relevant Sellers contributing any Deferred Consideration payments actually received, and, if such amounts are hereby excludedinsufficient, then (ii) by way of set-off or deduction once such Deferred Consideration becomes payable;
7.11 Notwithstanding the provisions of clause 7.10 the Buyer shall be entitled to bring proceedings in respect of any Relevant Claim against all Sellers simultaneously, provided that it may only recover in accordance with the order of priority set out in clause 7.10.
8.3 In so far as 7.12 Notwithstanding the Warranties relate to matters provisions of factthis clause 7, they Schedule 6 or Schedule 7 the Sellers shall constitute representations in reliance upon which have no liability for any Insured Risk. To the Buyer has entered into this Agreement.
8.4 Each of extent that the Warranties Policy is a separate representation or warranty and shall not be restricted in its extent or application avoided by the terms Insurers as a direct consequence only of:
7.12.1 any misrepresentation or failure to disclose to the Insurers any facts actually known to the Sellers or the Company at the time the Policy was granted; or
7.12.2 the occurrence of any of the other Warranties or by any other term events set out in clause 6.2 of the Policy, the PropCo Sellers shall be jointly and severally liable for the Insured Risks subject always to the limitations set out in clause 8 of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date agreement as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreementterm Sellers was substituted with PropCo Sellers.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Summit Therapeutics PLC)
Warranties. 8.1 5.1 The Sellers represent Warrantors acknowledge that the Investor has been induced to enter into this agreement and warrant to subscribe for the New Shares on the basis of and in reliance upon the Warranties amongst other things.
5.2 The Warrantors jointly and severally warrant to the Buyer in Investor that each and every Warranty is true, accurate and not misleading at the terms set out in Schedule 5 and each party acknowledges that date of this agreement subject only to:
(a) the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope Disclosed in the Disclosure Letter Letter; and
(‘Disclosed’b) but any exceptions expressly provided for under this agreement.
5.3 Each Warranty is a separate and independent warranty, and, save as otherwise expressly provided, no Warranty shall be limited by reference to any other information Warranty or by the other terms of which this agreement and the Buyer has actualDisclosure Letter.
5.4 The rights and remedies of the Investor in respect of any breach of any of the Warranties shall not be affected by Completion, constructive or imputed knowledge and no any investigation or enquiry made by or on behalf of the Buyer Investors into the affairs of the Company or any other event or matter whatsoever which otherwise might have affected such rights and remedies except a specific and duly authorised written waiver or release.
5.5 The Investor shall modify or discharge have the Sellers’ liability under right to claim in respect of any breach of the Warranties in either against the Company or against any way and the provisions of section 6(2) of the Law other Warrantors and/or partly against the Company and partly against any of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedthe other Warrantors and in the case of a Claim against the Company no counterclaim or right of contribution or indemnity shall lie against the other Warrantors and in the case of a Claim against any or all of the other Warrantors no counterclaim or right of contribution or indemnity shall lie by any of them against the Company or any other Warrantor.
8.3 In 5.6 Where any Warranty is qualified by the expression "so far as the Warranties relate Warrantors are aware" or words having similar effect, such Warranty shall be deemed to matters include a statement that such awareness means both the actual knowledge of fact, they shall constitute representations in reliance upon the Managers and also such knowledge which the Buyer has entered into this AgreementManagers would have had if they had made reasonable enquiry of all relevant persons.
8.4 Each 5.7 The Investor agree among themselves that the following provisions shall (unless they subsequently agree amongst themselves to the contrary acting by way of an Investor Majority) apply in relation to the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms enforcement of any of the other Warranties or by any other term of this Agreement.
8.5 Each obligations of the Sellers undertakes with Warrantors owed to the Buyer that -Investors under this agreement (the "Obligations"):
(a) each no claim in respect of any breach of the Warranties Obligations shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If be brought by any of the Warranties shall prove to be untrue or misleading, Investor without the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member prior written consent of an Investor Majority provided that all Investor have been informed of the Buyer’s Group) on demand -
(a) the amount by which the value breach of the Shares is less than it would have been had such Warranty been true Obligations and not misleading; orconsulted prior to an Investor Majority decision being made;
(b) the amount necessary costs incurred by any Investor in bringing a claim in respect of any breach of the Obligations shall be borne by all of the Investors proportionately to put their holding of shares in the capital of the Company and at that time; and
(c) any member damages obtained as a result of any claim in respect of any breach of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount Obligations will, after deduction of all costs and expenses (including legal and other professional fees and expenses, be divided amongst the Investor in such proportions. Any Investor shall be entitled to waive the Obligations owed to it at any time prior to the issue of proceedings with the consequence that it shall not be liable to bear its proportion of the costs of management time and all other consequential losses whether directly or indirectly arisingreferred to in (b) incurred directly or indirectly by the Buyer above (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company costs per Investor shall increase rateably for the purpose of assisting the Sellers remaining Investors) nor entitled to give any of the Warranties or damages referred to prepare the Disclosure Letterin (c) above.
Appears in 2 contracts
Sources: Subscription and Shareholders' Agreement, Subscription and Shareholders' Agreement
Warranties. 8.1 The Sellers represent and warrant jointly and severally If any warranty clause is incorporated below under Clause 37, Special U.S. Government Provisions, or in the Special Provisions, such warranty provisions are in addition to the Buyer provisions in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 to the extent to which they are in consistent. To the circumstances fair and reasonable.
8.2 The Warranties extent its provisions are given subject to matters fullyinconsistent with this clause, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2any warranty incorporated under Clause 37 or in the Special Provisions shall prevail. In addition to all other express or implied warranties, Seller warrants that the Goods will be: (i) free from defects in workmanship and materials; (ii) free from defects in design except to the extent that such Goods comply with the detailed designs provided by Buyer; and (iii) in conformity with all the other requirements of the Law this Purchase Order. These warranties, and all other warranties, express or implied, shall survive delivery, inspection, acceptance, and payment. In addition to any other rights or remedies Buyer may have, if Goods are found not to be as warranted within a period of Property one (Miscellaneous Provisions1) ▇▇▇ year after acceptance by ▇▇▇▇ are hereby excluded.
8.3 In so far ▇▇, Buyer may return such Goods to Seller at Seller's expense for correction, replacement or credit, as the Warranties relate to matters of fact, they Buyer may direct. Any Goods corrected or furnished in replacement shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to from the date of this Agreement were a reference delivery of such corrected or replacement Goods, be subject to the Completion Date; and
(b) it shall immediately disclose provisions of this Clause for the same period and to the Buyer in writing any matter which becomes known same extent as Goods initially furnished pursuant to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice Purchase Order. In addition to any other right rights Buyer may have, if the Services are found not to be performed as warranted within a period of one (1) year after the conclusion of the performance of the Services by Seller, Seller shall, at Buyer's option, either refund to Buyer the amount paid for the Services, or remedy which may be available perform the Services again in a proper manner to the extent necessary to provide Buyer with the result originally contemplated by Buyer. With respect to Goods found not to be as warranted, pay Seller shall bear the costs, if any, of inspection, disassembly, reassembly, retesting and any other similar costs incurred in connection with, or as a consequence of, correction, repair or replacement of Seller’s Goods, including any such costs associated with assemblies into which Goods have been incorporated. Any Goods corrected or furnished in replacement shall, from the date of delivery of such corrected or replacement Goods, be subject to the Buyer (or provisions of this Clause for the same period and to the relevant member of the same extent as Goods initially furnished pursuant to this Purchase Order. All warranties shall run to Buyer and to Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingcustomer.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Terms and Conditions, Terms and Conditions
Warranties. 8.1 6.1 The Buyer is entering into this agreement on the basis of, and in reliance on, the Warranties.
6.2 The Sellers warrant and represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 that each Warranty is true, accurate and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or not misleading on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference agreement except as Disclosed.
6.3 Without prejudice to the Completion Date; and
(b) it shall immediately disclose to right of the Buyer in writing to claim on any matter which becomes known other basis or take advantage of any other remedies available to it before Completion and which gives riseit, if any Warranty is breached or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove proves to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, shall pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -demand:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position they it would have been in if the Warranty had such Warranty not been true and breached or had not been untrue or misleading; together with the amount of and
(b) all costs and expenses (including including, without limitation, damages, legal and other professional fees and expensescosts, the costs of management time penalties, expenses and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which as a result of such breach or of the Warranty being untrue or misleading (including a reasonable amount in respect of management time). A payment made in accordance with the provisions of clause 6.3 shall include any amount necessary to ensure that, after any Taxation of the payment, the Buyer is left with the same amount it would have had if the payment was not have incurred had such Warranty been true and not misleadingsubject to Taxation.
8.7 6.4 Warranties qualified by the expression so far as the Sellers are aware or any similar expression are deemed to be given to the best of the knowledge, information and belief of the Sellers after they have made all reasonable and careful enquiries.
6.5 Each of the Sellers hereby waives Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any right which it may have other Warranty or any other provision in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee this agreement.
6.6 With the exception of the Company for matters Disclosed, no information of which the purpose of assisting Buyer and/or its agents and/or advisers has knowledge (actual, constructive or imputed) or which could have been discovered (whether by investigation made by the Sellers to give Buyer or made on its behalf) shall prejudice or prevent any of the Warranties Claim or to prepare the Disclosure Letterreduce any amount recoverable thereunder.
Appears in 2 contracts
Sources: Share Purchase Agreement (Capital Markets Technologies, Inc.), Share Purchase Agreement (Capital Markets Technologies, Inc.)
Warranties. 8.1 7.1 The Sellers Vendor and FAI jointly and severally represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges Purchaser that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Company Warranties shall remain is true and accurate at the date of this agreement and will be true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 Date.
7.2 The Vendor and Cervale jointly and severally represent and warrant to the Purchaser that each of the Asset Warranties is true and accurate at the date of this Agreement were agreement and will be true and accurate on each day up to and including the Completion Date.
7.3 Each of the Warranties is separate and independent and is not limited by reference to any other Warranty or any other provision in this agreement.
7.4 Each of the Company Warranties:
(a) applies in relation to each Group Company and, except where expressly otherwise provided, separately in relation to each Group Company as if each reference in SCHEDULE 6 to the 'Company' is a reference to the Completion Datethat Group Company; and
(b) it shall immediately disclose remains in full force and effect on and after the Completion Date despite Completion.
7.5 Each of the Asset Warranties remains in full force and effect on and after the Completion Date despite Completion.
7.6 Provided that all matters disclosed in SCHEDULE 8 have been disclosed separately to the Buyer Purchaser at least three days prior to the date of execution of this agreement, the Purchaser acknowledges that none of the matters disclosed in writing SCHEDULE 8 or any other matter which becomes known referred to it before Completion and which gives riseor contemplated by this agreement, or might including, without limitation, NZ Completion, can give rise, rise to a claim breach of Warranty. No other information relating to any Group Company of which the Purchaser has knowledge, actual or constructive, prejudices any Claim of the Purchaser under the Warranties nor operates to reduce any amount recoverable.
7.7 Subject to CLAUSE 7.8, if there is a breach of or inaccuracy in any of the Warranties on or before Completion the Purchaser may immediately terminate this agreement by notice in writing to the Vendor but is not entitled to any other remedy.
7.8 The Vendor must immediately notify the Purchaser in writing of any facts or circumstances of which would materially affect it becomes aware which constitute or may constitute a breach of any Warranty ('NOTIFIED BREACH'). The Purchaser must notify the willingness Vendor within 15 days of receipt of such notice, or before Completion, whichever occurs earlier, whether or not it has elected to terminate this agreement as a result of a prudent purchaser for value Notified Breach in accordance with CLAUSE 7.7. The Purchaser acknowledges that if it makes no election within 15 days of receipt of such notice, or before Completion, whichever occurs earlier, then the Purchaser waives any rights it may have to purchase terminate this Agreement in respect of the Shares on Notified Breach.
7.9 The rights and remedies of the Purchaser in respect of any breach of the Warranties or of the terms of this Agreementagreement are not affected by Completion.
8.6 If any of 7.10 The Vendor and FAI jointly and severally indemnify the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -Purchaser from all Claims:
(a) the amount made by any third party in relation to a matter which the value constitutes, or in circumstances that constitute, a breach of any of the Shares is less than it would have been had such Warranty been true and not misleadingCompany Warranties or any other covenant or representation in this agreement; or
(b) which the amount necessary to put Purchaser or any Company suffers or incurs by reason of any of the Company Warranties or any other covenant or representation made in this agreement being untrue or inaccurate in any respect or by reason of any failure by the Vendor or FAI to fulfil its obligations under this agreement.
7.11 The Vendor and Cervale jointly and severally indemnify the Purchaser from all Claims:
(a) made by any member third party in relation to a matter which constitutes, or in circumstances that constitute, a breach of any of the Buyer’s Group into Asset Warranties or any other covenant or representation in this agreement; or
(b) which the position it would have been Purchaser or any Company suffers or incurs by reason of any of the Asset Warranties or any other covenant or representation made in had such Warranty been true and not misleading; together with the amount this agreement being untrue or inaccurate in any respect or by reason of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly any failure by the Buyer Vendor or Cervale to fulfil its obligations under this agreement.
7.12 Notwithstanding any other provision of this agreement:
(or any member of a) the Buyer’s Group) or the Company which it would Vendor shall not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have liability in respect of any misrepresentation, inaccuracy Claim under the Warranties unless reasonable particulars of the Claim are given to the Vendor before the third anniversary of Completion;
(b) the liability of the Vendor in respect of any Claim under the Warranties shall be reduced to the extent that the Claim has arisen as a result of any act or omission after Completion by the Purchaser;
(c) the Vendor shall not be liable in respect of any Claim under the Warranties unless the aggregate of all Claims made against the Vendor under the Warranties exceeds the sum of A$100,000, but thereafter the Vendor will be liable for the whole amount payable in respect of all claims, and not just the excess over A$100,000.
7.13 The Purchaser acknowledges and agrees that, except for the Warranties, the Vendor has not given, nor has the Purchaser relied upon, any representation, warranty, statement or from any information document or advice supplied other conduct by the Vendor or given by any director, officer its representatives in connection with the Companies or employee the Business.
7.14 The Purchaser must (at the cost of the Company for Vendor) take such action as the purpose Vendor may request in relation to a Notified Breach, including without limitation:
(a) prosecute any action or proceedings, including the making of assisting any counter-claim or cross-claim against any person;
(b) conduct any negotiations and participate in any investigation in respect of such notified breach;
(c) not accept, pay or compromise such notified breach without the Sellers Vendor's prior written consent; and
(d) co-operate and procure its solicitors, accountants and other representatives to give any co-operate with the Vendor and its counsel, accountants or other representatives in respect of the Warranties or to prepare the Disclosure Lettersuch notified breach.
Appears in 2 contracts
Sources: Share Purchase Agreement (Home Security International Inc), Share Purchase Agreement (Home Security International Inc)
Warranties. 8.1 The Sellers represent and warrant jointly and severally SELLER WARRANTS THAT AT THE TIME OF DELIVERY (I) PRODUCT IS FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND SECURITY INTERESTS; AND (II) PRODUCT COMPLIES WITH SELLER’S PUBLISHED SPECIFICATIONS (OR AS OTHERWISE REFERENCED IN THE CONTRACT). SELLER MAKES NO OTHER WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
1. BUYER SHALL INSPECT THE PRODUCT SUPPLIED HEREUNDER IMMEDIATELY AFTER DELIVERY. EXCEPT WITH RESPECT TO CLAIMS FOR SHORTAGES[ OR FOR LATENT DEFECTS (AS PROVIDED BELOW)], BUYER’S FAILURE TO GIVE NOTICE TO SELLER OF ANY CLAIM WITHIN […***…] AFTER THE DATE OF DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF THE PRODUCT AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO. Buyer may reject any portion of any shipment of the Product that does not conform to the Buyer warranties set forth in the terms set out in Schedule 5 and each party acknowledges Contract by giving notice to Seller of such claim within […***…] after the date of delivery[; provided, however, that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are case of any Product having latent defects that could not have been discovered by Buyer within […***…] of delivery despite reasonable inspection by Buyer, Buyer may reject such Product by giving written notice to Seller of Buyer’s rejection of such Product within […***…] after discovery of such latent defect(s), but such notice may in no event be given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information later than […***…] after receipt of which the Buyer has actual, constructive such shipment]. Whether or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) not Seller accepts ▇▇▇ ▇▇▇’s basis for rejection, Seller will supply replacement Products within […***…] of notice of rejection at no additional cost. Within […***…] of receiving any notice of rejection from ▇▇▇▇▇, ▇▇▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
will respond stating whether (a) each of it accepts the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express rejection or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to disputes the Buyer rejection, in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, case the parties will refer such dispute to a claim under mutually acceptable independent third party with the Warranties appropriate expertise to assess the conformity or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any non-conformity of the Warranties rejected Product. Such independent third party shall prove to test the applicable Product and shall determine whether such Products were conforming or non-conforming. The parties agree that such third party’s determination shall be untrue or misleading, final and binding upon the Sellers shall, without prejudice to any other right or remedy which may be available to parties. The party against whom the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, independent third party rules shall bear the costs of management time testing by such independent third party, and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by if such third party determines that ▇▇▇▇▇▇’s rejection of Product was incorrect, Seller will purchase and pay for both the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true initially rejected and not misleadingreplacement Products. CLAIMS FOR SHORTAGES MUST BE RECEIVED BY SELLER IN WRITING WITHIN […***…] AFTER DELIVERY OF PRODUCTS. SELLER SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INSPECT ANY SHIPMENT CLAIMED BY BUYER TO CONTAIN A SHORTAGE. SELLER SHALL PROMPTLY DELIVER PRODUCT FOR ANY CLAIMED SHORTAGE WITHIN […***…] AFTER WRITTEN NOTICE OF SUCH SHORTAGE BY SELLER, AT SELLERS EXPENSE.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Sales Contract (Horizon Pharma, Inc.), Sales Contract (Horizon Pharma, Inc.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of The Oil and Gas Leases are valid, subsisting leases, superior and paramount to all other oil and gas leases respecting the Warranties shall remain true and accurate on each day up properties to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Datewhich they pertain; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary Mortgagor owns an interest in the oil and gas leases and properties described in Exhibit A hereto and, to put the Company and any member extent of the Buyerinterest specified in the Certificates of Ownership Interests, has valid and defensible title to each Property right or interest constituting the Mortgaged Property and has a good and legal right to make the grant and conveyance made in this Mortgage, it being understood that the Mortgagor’s Group into interest in each Oil and Gas Lease or Operating Equipment shall exceed Mortgagor’s Net Revenue Interest in production from such Oil and Gas Lease to the position it would have been in had such Warranty been true and not misleading; together with extent of the amount Mortgagor’s proportionate share of all costs and expenses (including legal royalties, overriding royalties, and other professional fees such payments out of production burdening the Mortgagor’s interest in each such Oil and expensesGas Lease; (c) the Mortgagor’s present Net Revenue Interest in the Mortgaged Property is not less than that specified in the Certificates of Ownership Interests; (d) the Mortgaged Property is free from all encumbrances or liens whatsoever, the costs of management time and all other consequential losses whether directly except as may be specifically set forth in Exhibit A or indirectly arising) incurred directly or indirectly as permitted by the Buyer provisions of Section 4.5.6; and (e) the Mortgagor is not obligated, by virtue of any deficiency presently existing under any contract providing for the sale by the Mortgagor of Hydrocarbons which contains a “take or pay” clause or under any similar arrangement, to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor. The Mortgagor will warrant and forever defend the Mortgaged Property unto the Mortgagee against every Person whomsoever lawfully claiming the same or any member of part thereof (except with respect to liens or other encumbrances permitted by Section 4.5.6), and the Buyer’s Group) or Mortgagor will maintain and preserve the Company which it would not have incurred had such Warranty been true lien and not misleading.
8.7 Each of the Sellers security interest hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give created so long as any of the Warranties or to prepare the Disclosure LetterSecured Indebtedness remains unpaid.
Appears in 2 contracts
Sources: Mortgage, Security Agreement, Fixture Filing and Financing Statement (Lilis Energy, Inc.), Mortgage, Security Agreement, Fixture Filing and Financing Statement (Lilis Energy, Inc.)
Warranties. 8.1 The Sellers represent Seller warrants that the products shall conform to its standard specifications at the date of its offer. No warranty of merchantability or fitness for a particular purpose shall apply. Buyer is aware of the specifications and warrant jointly features of the products and severally confirms their suitability for his applications. Seller has no liability or responsibility with respect to any claim of infringement of any patent recognized wherever in the world. Buyer, in case of any suit brought against him or Seller for infringement of any officially recognized patent, shall solely defend at his expense and pay costs and damages awarded, without any claim for compensation towards the seller. Buyer shall immediately after receiving the products verify if they meet Seller’s specifications. Any complaints of Buyer, including, but not limited to, complaints with respect to the quality of the product, shall be reported to Seller in writing immediately, by a notice specifying the nature of the lack of conformity of the products, or at the latest within 15 days from the delivery. Defects which even with careful inspection could not be discovered within this period, must be notified in writing within 15 days from the time that they are discovered by Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms providing due evidence on them. Failure of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf give such notice shall be an unqualified acceptance of the Buyer shall modify or discharge products and a waiver by him of any and all claims with respect thereto. Seller’s liability for damages of any kind, including for the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far products furnished not being as the Warranties relate to matters of factwarranted, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted greater in its extent or application by amount than the terms of any purchase price, plus substantiated transportation cost of the other Warranties or by any other term products from point of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up delivery to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value place of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensesbusiness, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentationwhich such damages are claimed. Seller assumes no risk or liability arising from Buyer’s possession, inaccuracy use or omission in or from any information or advice supplied or given by any director, officer or employee disposition of the Company products, unless otherwise specified. Seller assumes no risk or liability in cases where Buyer does not respect the technical guidelines and instructions by the seller for the purpose of assisting the Sellers to give any use of the Warranties product. In no event shall Seller be liable for any special, consequential, incidental, or to prepare the Disclosure Letterindirect damages, such as loss of profit, cost of substitute materials or claims of Buyer’s customers.
Appears in 2 contracts
Sources: Standard Terms of Sale, Standard Terms of Sale
Warranties. 8.1 5.1 The Sellers represent and warrant jointly and severally Vendor hereby warrants to the Buyer in Purchaser (both for themselves and as trustee for all other members of the terms set out in Schedule 5 and each party acknowledges that enlarged Group) as to the terms accuracy of Schedule 5 and this clause 8 are in the circumstances fair and reasonableWarranties.
8.2 5.2 The Warranties are given subject to matters fully, the statements of fact fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of and which if not so disclosed would have rendered a Warranty untrue and which disclosures the Buyer has actual, constructive or imputed knowledge Vendor warrants represents and no investigation or enquiry made by or on behalf undertakes to be true and accurate and not misleading.
5.3 Each of the Buyer Warranties shall modify be a separate Warranty and shall in no way be limited or discharge reduced by reference to the Sellers’ liability under the Warranties in terms of any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedother Warranty.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer 5.4 The Purchaser has entered into this Agreement.
8.4 Each Agreement on the basis of the Warranties is and in reliance on them.
5.5 The Purchaser warrants that at the date hereof it has no knowledge of any fact or matter which may render any Warranty untrue.
5.6 In the event of a separate representation or warranty and shall not be restricted in its extent or application by the terms breach of any of the other Warranties the Vendor shall not be entitled to disclaim liability therefor on the grounds that loss in respect thereof has been suffered by the relevant Group Company rather than by the Purchaser nor raise as a defence the fact (if it be the case) that the relevant Group Company and/or its employees officers agents or by advisers had or ought to have had at any other term time knowledge of this Agreementthe breach complained of.
8.5 Each 5.7 No proceedings shall be commenced in respect of the Sellers undertakes with the Buyer that -
(a) each any claim for breach of the Warranties shall remain true or the Deed of Covenant unless:-
5.7.1 notice giving reasonable details of the claim:
5.7.1.1 shall, in the case of any claim other than a claim relating to Taxation, have been delivered to the Vendor by the Purchaser as soon as reasonably practicable after it has become aware of it and accurate on each day up to and including the Completion Date as if in any express or implied reference in Schedule 5 to event not later than twenty-one months after the date of this Agreement were a reference to the Completion DateCompletion; and
(b) it 5.7.1.2 insofar as such breach relates to Taxation, shall immediately disclose have been delivered to the Buyer Vendor by the Purchaser as soon as reasonably practicable after it has become aware of it and in writing any matter event within seven years of the date of Completion; and
5.7.2 the amount of each claim exceeds (pound)2,500 and when aggregated with all the other claims exceeds (pound)50,000 in which becomes known event the full amount (and not only the excess) may be claimed under legal proceedings. The limitations in this Clause 5.7 and in Clauses 5.8 to it before Completion 5.10 and which gives rise5.12 shall not apply in the case of fraud by the Vendor.
5.8 The total amount of the liability in respect of any and all claims under the Warranties and the Deed of Covenant shall be limited to (pound)2,500,000.
5.9 If, subsequent to any payment by the Vendor to the Purchaser in respect of any Warranty claim or might give rise, to a any claim under the Warranties Deed of Covenant, the Group or which would materially affect the willingness Purchaser or either of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If them receives any payment from any third party in respect of the Warranties shall prove to be untrue or misleadingloss suffered by the Company which resulted in the claim, the Sellers shall, without prejudice to any other right or remedy which may be available Purchaser shall reimburse to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) Vendor the amount by which the value of the Shares is so recovered less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all reasonable costs and expenses (including legal and other professional fees and expenses, any Tax liability) of the costs of management time and all other consequential losses whether directly recovery but including in addition any interest or indirectly arising) incurred directly or indirectly repayment supplement paid by the Buyer Inland Revenue or HM Customs & Excise and the Purchaser shall and shall procure that the Group shall use all reasonable endeavours to enforce any rights to make any such recovery from any third parties subject to the Purchaser and the Group being indemnified and secured to their reasonable satisfaction by the Vendor against all losses, liabilities, costs and expenses properly and reasonably incurred in connection with the enforcement of such rights.
5.10.1 Upon the Purchaser or the Group becoming aware of any claim, action or demand ("a Claim") against the Company or any matter ("a Relevant Matter") likely to give rise to any of these in respect of the Warranties or the Deed of Covenant, then provided that the Purchaser's claim against the Vendor shall not be prejudiced the Purchaser shall:
5.10.1.1 as quickly as reasonably possible, notify the Vendor by written notice as soon as it is reasonably clear to the Purchaser that the Vendor is or may become liable under the Warranties or the Deed of Covenant and in the case of a matter relating to Taxation provide reasonably sufficient details of such claim, details of the due date for any payment and the time limits for any appeal, as soon as possible and in any event not more than 14 days after the Purchaser or the Group becomes aware of such claim;
5.10.1.2 at the request of the Vendor, allow the Vendor to take the sole conduct of such actions as the Vendor may deem reasonably appropriate in connection with any such Claim in the name of the appropriate Group company and in that connection the Group and the Purchaser shall give or cause to be given to the Vendor all such assistance as he may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such Claim; and
5.10.1.3 take all reasonable action to mitigate any loss suffered by it or any member of the Buyer’s Group) or Group of which a Claim could be made under the Company which it would not have incurred had Warranties;
5.10.1.4 give such Warranty been true information to the Vendor and not misleading.
8.7 Each of his professional advisers as the Sellers hereby waives any right which it Vendor may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company reasonably request for the purpose of assisting the Sellers to give any Vendor exercising his entitlement as specified in sub-clause 5.
10.1.2 provided that the Vendor and his professional advisers shall keep all such information confidential save only as may be required for the purposes of the Warranties or to prepare the Disclosure Letter.such claim;
Appears in 2 contracts
Sources: Acquisition Agreement (Transmedia Asia Pacific Inc), Acquisition Agreement (Transmedia Europe Inc)
Warranties. 8.1 6.1. Subject to the following provisions, the Seller warrants that goods delivered pursuant to a Contract shall comply with all properties and characteristics expressly agreed in writing or to be customarily expected pursuant to the legal provisions under the substantive national laws applicable to the Seller at the time when risk passes to the Buyer. The Sellers represent Seller does not undertake any warranty in respect of defects caused by improper handling, wear and warrant jointly and severally tear, storage, any alteration of the goods by the Buyer or any use by the Buyer in a manner which adversely affects the performance of the goods or other acts or omissions of the Buyer or of third parties. The Seller shall not be obliged to notify the Buyer of the unsuitability of its instructions or specifications unless the Seller is aware of such unsuitability.
6.2. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES; WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR AN INTENTED PURPOSE OR PARTICULAR USE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
6.3. A delivery shall be deemed to have been effected in compliance with contractual agreements if any deviations in respect of quantity, grammage, thickness, size or width of reels of the goods delivered by the Seller to the Buyer do not exceed the agreed or customary tolerances. The quantity in respect of any delivery shall thereby be calculated based on the actual weight of the goods at the time of production and packaging. In the case of reels and uncounted sheets the weight shall apply gross for net; in the terms set out in Schedule 5 case of reels the wrappings, cores and each party acknowledges that the terms of Schedule 5 bungs and this clause 8 are in the circumstances fair and reasonablecase of sheets the wrappings shall be included in the weight. Irrespective of the above provisions, any quantity deviations which are common in the trade, negligible or technically unavoidable shall not be deemed defects.
8.2 6.4. The Warranties Buyer is obliged to inspect the delivered goods immediately upon receipt, however, in any case prior to processing the goods, as to any defects. If the goods do not comply with the agreed quality standards, processing must not commence before the Seller has approved thereof in writing. For claims in connection with defects, the following provisions shall apply:
a) in case of deviations in quantity (i.e. delivered quantity is larger or smaller than contracted quantity) the defects are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable be notified by the Buyer to understand their nature and scope the Seller forthwith, however, in any event within seven days after receipt of documents showing weight or quantity of the Disclosure Letter (‘Disclosed’delivered goods and/or after delivery;
b) but no other information in case of defects in quality which can be ascertained by visual inspection of the goods or the packaging or by sampling, the defects must be notified by the Buyer has actualto the Seller forthwith, constructive however, in any case within seven days after delivery;
c) in case of defects in quality which cannot be determined by visual inspection or imputed knowledge by sampling, the defects are to be notified by the Buyer to the Seller forthwith on detection, however, in any event within six months of delivery. Later notifications of defects/complaints cannot be accepted.
6.5. In case of papers and no investigation printed products used as component for tobacco products, packing of food, bottling and drinking of beverage, packaging applications for organoleptically sensitive products, and packaging of pharmaceutical products, the Buyer is obliged to check the suitability of the papers and printed products before processing and forthwith notify the Seller in case of defects or enquiry made unsuitability. The Buyer shall obtain all necessary permits, licenses, approvals and the like to export, import, use, market and process any papers and printed products sourced from the Seller being used as component for tobacco products, packing of food, bottling and drinking of beverage, packaging applications for organoleptically sensitive products, and packaging of pharmaceutical products.
6.6. When notifying a defect, the Buyer shall identify the goods clearly and include a list giving details of each defect claimed and provide the Seller with product samples and any other suitable documents to support such claim. Defective goods must be kept available for the Seller’s inspections for 14 days from the date of the notification and must not be returned to the Seller early. Any notification of a defect shall be in writing. If such notification or availability of defective goods for inspection by or on behalf the Seller are not effected in compliance with the above provisions, any and all warranty, damage and other claims of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby be excluded.
8.3 In so far as 6.7. Until the Warranties relate to matters facts of factthe case have been ascertained, they shall constitute representations in reliance upon which the Buyer has entered into this Agreementshall duly store the goods and, in the interest of both contracting parties, keep them insured to cover the purchase price. If it is suspected that the damage occurred during transport, the Buyer is further obliged to notify the forwarding agent (carrier) forthwith, however, in any case within the deadline provided in the forwarding contract.
8.4 Each 6.8. If the quantity of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application goods delivered by the terms Seller falls below customary or agreed tolerances (as applicable), the Seller’s sole obligation shall be to deliver additional goods to make up for any such deficiency.
6.9. Quality defects in the delivered goods shall be remedied by improvement or replacement of the defective item(s) free of charge. In the event that improvement or replacement is either impossible or would involve unreasonably high expenses for the Seller, the Buyer shall be entitled to a reduction of the price. Any claims in addition thereto, such as in particular claims for cancellation of the Contract, claims for damages or claims for substitute performance shall be excluded to the extent permitted by law.
6.10. Any legal presumption under applicable law to the effect that the goods were defective upon delivery shall be excluded.
6.11. Any warranty claims of the Buyer shall come under the statute of limitation seven months after the passing of risk. The duration of a delay in acceptance, if any, shall be included in such seven- months period.
6.12. The fulfilment of any warranty obligations of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties Seller shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose be subject to the Buyer in writing fulfilling any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingits Contractual obligations, in particular its payment obligations as agreed.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: General Terms and Conditions of Sale, General Terms and Conditions of Sale
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but Velodyne makes no other information of which the Buyer has actual, constructive warranty or imputed knowledge and no investigation representations regarding manufacturing costs or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as of materials costs. Velodyne makes no warranty or representations regarding manufacturing times or yields. Velodyne represents and warrants that: (i) the Warranties relate information, documents and other materials provided to matters Veoneer hereunder will conform materially to what has been agreed between the Parties regarding the same (which shall be specified with particularity in the Definitive Agreement); and (ii) said information, documents and other materials will be sufficient for reasonably qualified personnel to develop the initially targeted Licensed Products meeting reasonable customer requirements, save for the automotive grade improvements (which will be the sole responsibility of factVeoneer). For clarity, they shall constitute representations in reliance upon which it is agreed that the Buyer has entered into this Agreement.
8.4 Each sole remedy for any breach of the Warranties is a separate above representation and warranty other than willful misconduct or gross failure will be the providing of remedied information, documents and other materials to support Veoneer and that, in no event, will any possible monetary liability on the part of Velodyne for the same exceed $[*] USD in the aggregate. Velodyne represents and warrants that the [*] design and the Licensed Products, to the extent comprising the [*] design and excluding any automotive grade and other improvements or modifications created by Veoneer, do not infringe any third-party intellectual property rights. Notwithstanding anything to the contrary, Velodyne does not provide any warranty and shall not be restricted in its extent or application disclaims all liability with respect to products produced by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
Veoneer (a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shallincluding, without prejudice to any other right or remedy which may be available to the Buyerlimitation, pay to the Buyer (or to the relevant member of the Buyer’s GroupLicensed Products) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensesand, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company save for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letterwarranties expressly provided above in this Section 5.9. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, VELODYNE MAKES NO WARRANTY WITH RESPECT TO ANY LICENSED PRODUCT, VELODYNE INTELLECTUAL PROPERTY, VELODYNE SERVICES, VELODYNE INTELLECTUAL PROPERTY RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT, ANY AND ALL OF THE FOREGOING ARE PROVIDED ON AN “AS IS” BASIS AND VELODYNE HEREBY DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
Appears in 2 contracts
Sources: License and Supply Agreement (Velodyne Lidar, Inc.), License and Supply Agreement (Veoneer, Inc.)
Warranties. 8.1 5.1 The Sellers represent Buyer enters into this agreement on the basis of, and warrant jointly in reliance on, the Warranties.
5.2 The Seller warrants and severally represents to the Buyer in the terms set out in Schedule 5 and that each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation true, accurate and not misleading except in respect of anything disclosed.
5.3 The Seller shall ensure that nothing is done or warranty and shall not omitted to be restricted in its extent done which would, at any time before or application by the terms of at Completion, be materially inconsistent with any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives riseWarranties, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If breach any of the Warranties shall or make any of the Warranties untrue or misleading.
5.4 Without prejudice to the right of the Buyer to claim on any other basis or take advantage of any other remedies available to it, if any of the Warranties are breached or prove to be untrue or misleading, the Sellers shall, without prejudice Seller undertakes to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -demand:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group Buyer into the position it would have been in had if such Warranty had not been breached or had been true and not misleading; together with the amount of and
(b) all costs and expenses (including including, without limitation, damages, claims, demands, proceedings, costs, legal and other professional fees and expensescosts, the costs of management time penalties, expenses and all other consequential losses whether directly or indirectly arisinglosses) incurred directly or indirectly by the Buyer (whether directly or any member indirectly) as a result of the Buyer’s Group) breach or of such Warranty not being true or being misleading, and a payment made in accordance with the Company which provisions of this clause 5.4 shall include any amount necessary to ensure that, after any Taxation of the payment, the Buyer is left with the same amount it would have had if the payment was not have incurred had such Warranty been true and not misleadingsubject to Taxation.
8.7 5.5 Warranties given so far as the Seller is aware are deemed to be given to the best of the knowledge, information and belief of the Seller after it has made all reasonable and careful enquiries.
5.6 Each of the Sellers hereby waives Warranties is separate and, unless expressly provided to the contrary, is not limited by reference to any right which it may have other Warranty or anything in respect this agreement.
5.7 The provisions of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee Schedule 8 shall limit the liability of the Company for Seller in relation to any Claim. Provided that the purpose limitations in Schedule 8 shall not apply to any claim arising as a result of assisting the Sellers to give a breach of clause 2.1 or any Claim arising as a result of a breach of the Warranties contained in paragraph 2 or to prepare the Disclosure Letterparagraph 3 of Schedule 7.
Appears in 2 contracts
Warranties. 8.1 The Sellers represent and warrant jointly and severally 9.1 With respect to Exhibit A hereto, the Vendor:
(a) warrants to the Buyer Purchaser in the terms set out in Schedule 5 and each party acknowledges Exhibit A;
(b) accepts that the terms of Schedule 5 and Purchaser is entering into this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations Agreement in reliance upon each of the Warranties;
(c) undertakes to disclose to the Purchaser anything which is or may be a breach of or inconsistent with, any of the Buyer has entered into Warranties immediately when it comes to their notice; and
(d) undertakes (in the event of any claim being made against them in connection with the sale of the Contracts and Assets to the Purchaser) not to make any claim against any Assumed Employee on whom they may have relied before agreeing to any term of this AgreementAgreement or giving any warranty or representation or undertaking.
8.4 9.2 Each of the Warranties is set forth on Exhibit A hereto shall be construed as a separate representation or warranty and (save as expressly provided to the contrary) shall not be limited or restricted in its extent by reference to or application by inference from the terms of any of the other Warranties Warranty or by any other term of this Agreement.
8.5 Each 9.3 The liability of the Sellers undertakes Vendor for Claims with the Buyer that -
(a) each of respect to the Warranties set forth on Exhibit A hereto shall remain true and accurate on each day up to and including the Completion Date be limited as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -follows:
(a) the Vendor shall not be liable for a Claim unless the aggregate amount by which the value of the Shares liability of the Vendor under all Claims exceeds £10,000 and, in the event, that such sum is less than it would have been had such Warranty been true exceeded, the Vendor shall be liable for the full amount and not misleading; orjust the excess whether under a single Claim or a series of Claims;
(b) a Claim shall be unenforceable unless written particulars thereof (giving details of the specific matter in respect of which such Claim is made and the estimated amount necessary thereof, each as then known to put the Company Purchaser) shall have been given to the Vendor by the date which is twelve months after the first anniversary of the Completion Date; and any member claim duly notified shall become and unenforceable at the end of two years from notification unless proceedings have been served on the Vendor, and
(c) the aggregate maximum liability of the Buyer’s Group into Vendor under the position it would have been in had such Warranty been true and not misleading; together with Warranties for any Turbine shall be capped at the amount of all costs and expenses the total consideration set out in clause 4.1 (including legal and other professional fees and expensesl) . This Clause 9.3 is not applicable to liabilities related to PGP obligations. For the avoidance of doubt, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or nothing in this Agreement shall exclude and/or in any member way limit any liability of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect Vendors arising as a result of any misrepresentationfraud, inaccuracy wilful concealment or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letterdishonesty.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Contracts and Assets, Agreement for the Sale and Purchase of Contracts and Assets (Northern Power Systems Corp.)
Warranties. 8.1 6.1. Subject to the following provisions, the Seller warrants that goods delivered pursuant to a Contract shall comply with all properties and characteristics expressly agreed in writing or to be customarily expected pursuant to the legal provisions under the substantive national laws applicable at the Seller’s place of incorporation at the time when risk passes to the Buyer. The Sellers represent Seller does not undertake any warranty in respect of defects caused by improper handling, wear and warrant jointly tear, storage, any alteration of the goods by the Buyer or any use by the Buyer in a manner which adversely affects the performance of the goods or other negligent acts or omissions of the Buyer or of third parties. The Seller shall not be obliged to notify the Buyer of the unsuitability of its instructions or specifications unless the Seller is aware of such unsuitability.
6.2. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES; WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR AN INTENTED PURPOSE OR PARTICULAR USE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
6.3. Differences in qualities, dimension, weight and severally quantities customary in trade shall not constitute grounds for warranty claims.
(i) In case of supply of fine papers a delivery shall be deemed to have been effected in compliance with contractual agreements if any deviations in respect of quantity, grammage, thickness, size or width of reels of the papers delivered by the Seller to the Buyer do not exceed the tolerances as agreed in the terms writing or set out in Schedule 5 section 17 below. The quantity in respect of any delivery shall thereby be calculated based on the actual weight of the goods at the time of production and each party acknowledges that packaging. In the terms case of Schedule 5 reels and this clause 8 are uncounted sheets the weight shall apply gross for net; in the circumstances fair case of reels the wrappings, cores and reasonablebungs and in the case of sheets the wrappings shall be included in the weight.
8.2 (ii) In case of supply of printed products process variations like missing dots in gravure printing, minor ink splashes, short blade lines, minor fiber agglomerations and short distance verge lines shall not be considered to be defects.
6.4. The Warranties Buyer is obliged to inspect the delivered goods immediately upon receipt, however, in any case prior to processing the goods, as to any defects. If the goods do not comply with the agreed quality standards, processing must not commence before the Seller has approved thereof in writing. For claims in connection with defects, the following provisions shall apply:
a) in case of deviations in quantity (i.e. delivered quantity is larger or smaller than contracted quantity) the defects are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable be notified by the Buyer to understand their nature and scope the Seller forthwith, however, in any event within seven days after receipt of documents showing weight or quantity of the Disclosure Letter (‘Disclosed’delivered goods and/or after delivery;
b) but no other information in case of defects in quality which can be ascertained by visual inspection of the goods or the packaging or by sampling, the defects must be notified by the Buyer has actualto the Seller forthwith, constructive however, in any case within seven days after delivery;
c) in case of defects in quality which cannot be determined by visual inspection or imputed knowledge by sampling, the defects are to be notified by the Buyer to the Seller forthwith on detection, however, in any event within six months of delivery. Later notifications of defects/complaints cannot be accepted.
6.5. In case of papers and no investigation printed products used as component for tobacco products, packing of food, bottling and drinking of beverage, packaging applications for organoleptically sensitive products, and packaging of pharmaceutical products, the Buyer is obliged to check the suitability of the papers and printed products before processing and forthwith notify the Seller in case of defects or enquiry made unsuitability. The Buyer shall obtain all necessary permits, licenses, approvals and the like to export, import, use, market and process any papers and printed products sourced from the Seller being used as component for tobacco products, packing of food, bottling and drinking of beverage, packaging applications for organoleptically sensitive products, and packaging of pharmaceutical products.
6.6. When notifying a defect, the Buyer shall identify the goods clearly and include a list giving details of each defect claimed and provide the Seller with product samples and any other suitable documents to support such claim. Defective goods must be kept available for the Seller’s inspections for 14 days from the date of the notification and must not be returned to the Seller early. Any notification of a defect shall be in writing. If such notification or availability of defective goods for inspection by or on behalf the Seller are not effected in compliance with the above provisions, any and all warranty, damage and other claims of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby be excluded.
8.3 In so far as 6.7. Until the Warranties relate to matters facts of factthe case have been ascertained, they shall constitute representations in reliance upon which the Buyer has entered into this Agreementshall duly store the goods and, in the interest of both contracting parties, keep them insured to cover the purchase price. If it is suspected that the damage occurred during transport, the Buyer is further obliged to notify the forwarding agent (carrier) forthwith, however, in any case within the deadline provided in the forwarding contract.
8.4 Each 6.8. If the quantity of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application goods delivered by the terms Seller falls below customary or agreed tolerances (as applicable), the Seller’s sole obligation shall be to deliver additional goods to make up for any such deficiency.
6.9. Quality defects in the delivered goods shall be remedied by improvement or replacement of the defective item(s) free of charge. In the event that improvement or replacement is either impossible or would involve unreasonably high expenses for the Seller, the Buyer shall be entitled to a reduction of the price. Any claims in addition thereto, such as in particular claims for cancellation of the Contract, claims for damages or claims for substitute performance shall be excluded to the extent permitted by law.
6.10. Any legal presumption under applicable law to the effect that the goods were defective upon delivery shall be excluded.
6.11. Any warranty claims of the Buyer shall come under the statute of limitation seven months after the passing of risk. The duration of a delay in acceptance, if any, shall be included in such seven- months period.
6.12. The fulfilment of any warranty obligations of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties Seller shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose be subject to the Buyer in writing fulfilling any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingits Contractual obligations, in particular its payment obligations as agreed.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Sales Contracts, Sales Contracts
Warranties. 8.1 5.1 The Sellers represent Warrantor acknowledges that the Series B Investors have been induced to enter into this Agreement and warrant jointly to subscribe for the New Shares on the basis of and severally in reliance upon the Warranties amongst other things.
5.2 The Warrantor warrants to the Buyer in the terms Series B Investors that each and every Warranty set out in Schedule 5 is true and each party acknowledges that accurate at the date of this Agreement subject only to:
(a) the matters Disclosed in die Disclosure Letter; and
(b) any exceptions expressly provided for under this Agreement.
5.3 Each Warranty is a separate and independent warranty, and, save as otherwise expressly provided, no Warranty shall be limited by reference to any other Warranty or by me other terms of Schedule 5 this Agreement and this clause 8 are in the circumstances fair and reasonableDisclosure Letter.
8.2 5.4 The rights and remedies of the Series B Investors in respect of any breach of any of the Warranties are given subject to matters fullyshall not be affected by Completion, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no any investigation or enquiry made by or on behalf of the Buyer shall modify or discharge Series B Investors into the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) affairs of the Law Company or any other event or matter whatsoever which otherwise might have affected such rights and remedies except a specific and duly authorised written waiver or release.
5.5 No information relating to the Company of Property which the Series B Investors have knowledge (Miscellaneous Provisionsactual or constructive) other than by reason of it being disclosed in accordance with clause 5.2(a) shall prejudice any Claim which the Sales B Investors shall be entitled to bring or shall operate to reduce any amount recoverable by the Series B Investors under this Agreement,
5.6 Where any Warranty is qualified by the expression “so far as the Warrantor is aware” or words having similar effect, such Warranty shall be deemed to include a statement that such awareness means both the actual knowledge of the Company and also such knowledge which the Company would have had if it had made duo and careful enquiry of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties ascertain whether each Warranty is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true correct and not misleading.
8.7 Each 5.7 The Series B Investors agree among themselves that the following provisions shall (unless they subsequently agree amongst themselves to the contrary acting by way of a Series B Majority) apply in relation to the enforcement of any of the Sellers hereby waives any right which it may have obligations of the Warrantor owed to the Series B Investors under this Agreement (the “Obligations”):
(a) no claim in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee breach of the Company for the purpose of assisting the Sellers to give Obligations shall be brought by any of the Warranties or Series B Investors without the prior written consent of a Series B Majority provided that all Series B Investors have been informed of the breach of the Obligations and consulted prior to prepare a Series B Majority decision being made;
(b) tire costs incurred by any Series B Investors in bringing a claim in respect of any breach of the Disclosure LetterObligations shall be borne by all of the Series B Investors proportionately to their holding of New Shares at that time; and
(c) any damages obtained as a result of any claim in respect of any breach of the Obligations will, after deduction of all costs and expenses, be divided amongst the Series B Investors proportionately to their holding of Now Shares as a percentage of all New Shares at that time. Any Series B Investor shall be entitled to waive the Obligations owed to it at any time prior to the issue of proceedings with the consequence that it shall not be liable to hear its proportion of the costs referred to in (b) above (which costs per Series B Investor shall increase rateably for the remaining Series B Investors) nor entitled to any of the damages referred to in (c) above.
5.8 The Company acknowledges and agrees that, in connection with any Claim by the Series B Investors for breach of the Obligations, the Series B Investors shall be entitled to seek, as part of any Claim for damages, an amount equal to the Series B Investors’ proportionate share of the amount actually paid by the Company to the Series B Investor as a result of any such Claim.
Appears in 2 contracts
Sources: Subscription and Shareholders’ Agreement, Subscription and Shareholders’ Agreement (Mimecast LTD)
Warranties. 8.1 7.1 The Sellers represent and warrant jointly and severally Seller warrants to the Buyer in that each Warranty is true, accurate and not misleading at the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term date of this Agreement.
8.5 Each of Deed. On and immediately before Completion, the Sellers undertakes with Seller is deemed to warrant to the Buyer that -
(a) each Warranty is true, accurate and not misleading by reference to the facts and circumstances at the date of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any Completion. For this purpose an express or implied reference in Schedule 5 a Warranty to the “date of this Deed” is to be construed as a reference to the “date of Completion”.
7.2 The Seller acknowledges that the Buyer is entering into this Deed in reliance on each Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Deed.
7.3 Between the date of this Agreement were a reference to Deed and Final Completion, the Completion Date; and
(b) it Seller shall immediately disclose to notify the Buyer in writing immediately if it becomes aware of any matter fact or circumstance which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties constitutes or which would materially affect or might constitute a breach of Clause 7.1 or which would or might cause a Warranty to be untrue, inaccurate or misleading if given in respect of the willingness facts or circumstances at the date the Seller becomes aware of a prudent purchaser for value to purchase the Shares on same.
7.4 If, at any time before Final Completion, the terms Buyer considers that the Seller is in breach of any provision of this Agreement.
8.6 If Deed (whether or not such breach amounts to a repudiatory breach) or if the Seller gives a notice under Clause 7.3, the Buyer may, in its discretion, elect to proceed to Completion in respect of all or any of the Warranties shall prove Option Shares by delivery of an Option Notice or Option Notices in accordance with Clause 3 (Exercise of Option) or terminate this Deed.
7.5 If the Buyer terminates this Deed pursuant to be untrue or misleadingClause 7.4, the Sellers shall, without prejudice to any other right or remedy which may be available to Seller shall indemnify the Buyer, pay to and keep the Buyer (or to the relevant member of the Buyer’s Group) indemnified, on demand -
(a) the amount by against all its costs, liabilities, obligations, damages, expenses and losses however arising which the value Buyer may suffer or incur by reason of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member breach of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount any provisions of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly this Deed by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingSeller.
8.7 7.6 Each Warranty is to be construed independently and (except where this Deed provides otherwise) is not limited by a provision of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy this Deed or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letteranother Warranty.
Appears in 2 contracts
Sources: Shares Purchase Agreement (MIE Holdings Corp), First Amendment and Restatement Agreement (MIE Holdings Corp)
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of The Oil and Gas Leases are valid, subsisting leases, superior and paramount to all other oil and gas leases respecting the Warranties shall remain true and accurate on each day up properties to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Datewhich they pertain; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary Mortgagor owns an interest in the oil and gas leases and properties described in Exhibit A or in the mortgages, amendments to put mortgage and other instruments described in Exhibit A and, to the Company and any member extent of the Buyerinterest specified in the Certificates of Ownership Interests, has valid and defensible title to each property right or interest constituting the Mortgaged Property and has a good and legal right to make the grant and conveyance made in this Mortgage, it being understood that the Mortgagor’s Group into interest in each Oil and Gas Lease or Operating Equipment shall exceed Mortgagor’s Net Revenue Interest in production from such Oil and Gas Lease to the position it would have been in had such Warranty been true and not misleading; together with extent of the amount Mortgagor’s proportionate share of all costs and expenses (including legal royalties, overriding royalties, and other professional fees such payments out of production burdening the Mortgagor’s interest in each such Oil and expensesGas Lease; (c) the Mortgagor’s present Net Revenue Interest in the Mortgaged Property is not less than that specified in the Certificates of Ownership Interests; (d) the Mortgaged Property is free from all encumbrances or liens whatsoever, except as may be specifically set forth in Exhibit A or in the costs of management time mortgages, amendments to mortgage and all other consequential losses whether directly instruments described in Exhibit A or indirectly arising) incurred directly or indirectly as permitted by the Buyer provisions of Section 4.5.6; and (e) the Mortgagor is not obligated, by virtue of any deficiency presently existing under any contract providing for the sale by the Mortgagor of Hydrocarbons which contains a “take or pay” clause or under any similar arrangement, to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor. The Mortgagor will warrant and forever defend the Mortgaged Property unto the Mortgagee, its successors and assigns against every Person whomsoever lawfully claiming the same or any member of part thereof, and the Buyer’s Group) or Mortgagor will maintain and preserve the Company which it would not have incurred had such Warranty been true lien and not misleading.
8.7 Each of the Sellers security interest hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give created so long as any of the Warranties or to prepare the Disclosure LetterSecured Indebtedness remains unpaid.
Appears in 2 contracts
Sources: Mortgage, Security Agreement, Assignment of Production, Fixture Filing and Financing Statement (Lilis Energy, Inc.), Mortgage, Security Agreement, Assignment of Production, Fixture Filing and Financing Statement (Starboard Resources, Inc.)
Warranties. 8.1 The Sellers represent UCAR CARBON warrants, represents, covenants and warrant jointly and severally agrees as follows:
(i) the materials or items supplied pursuant to the Buyer purchase order will
(A) be in full compliance with BPS's Specifications, blueprints, drawings and data,
(B) be in conformity with samples approved by BPS,
(C) not infringe any patent, copyright, trade secret, mask work right, trademark or other intellectual property right of any person covering the material or item itself but UCAR CARBON does not warrant against infringement by reason of the use of such material or item in combination with other articles or material or in the terms set out practice of any process other than a process for which such item has been expressly manufactured by UCAR CARBON,
(D) be so supplied, and BPS will have title thereto, free and clear of all liens, charges, encumbrances and security interests;
(ii) THERE ARE NO EXPRESS WARRANTIES BY UCAR CARBON OTHER THAN THOSE SPECIFIED IN THIS SECTION. NO WARRANTIES BY UCAR CARBON (OTHER THAN WARRANTY OF TITLE AS PROVIDED BY THE UNIFORM COMMERCIAL CODE) SHALL BE IMPLIED OR OTHERWISE CREATED AT LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, BPS assumes all risk and liability for the results obtained by the use of any products delivered hereunder in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are combination with other articles or material or in the circumstances fair and reasonablepractice of any process other than a process for which such item has been expressly manufactured by UCAR CARBON.
8.2 The Warranties are given subject to matters fully(iii) BPS's receipt of any products delivered hereunder shall be an unqualified acceptance of, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature a waiver by BPS of any and scope in the Disclosure Letter all claims (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability including claims arising under the Warranties warranties specified in any way and the provisions this Section 3.1(f)) with respect to, such products unless BPS gives UCAR CARBON notice of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they claim within 150 days after such receipt or within ten days after BPS shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms have received 12 written notice of any claim of the other Warranties or infringement covered by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -clause (i) above,
(aiv) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express materials or implied reference in Schedule 5 to items delivered hereunder do not meet the date of this Agreement were a reference to the Completion Date; andwarranties specified herein, BPS may, at its option
(bA) it shall immediately disclose require the UCAR CARBON to the Buyer in writing correct, at no cost to BPS, any matter which becomes known to it before Completion and which gives risedefective or non-conforming materials or items by repair or replacement, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(bB) return such defective or non-conforming materials or items at UCAR CARBON's expense to the amount necessary UCAR CARBON and recover from the UCAR CARBON the purchase order price thereof, or
(C) correct the defective or non-conforming materials or items itself and charge UCAR CARBON with the cost of such correction. The foregoing remedies are exclusive to put the Company and BPS.
(v) No waiver by BPS of any member drawing or specification requirement for one or more of the Buyer’s Group into the position it would have been in had materials or items ordered will constitute a waiver of such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company requirements for the purpose remaining materials or items to be delivered hereunder, unless specified by BPS in writing. The provisions of assisting this Section 3.1(f) will not limit or affect the Sellers to give any rights of the Warranties or to prepare the Disclosure LetterBPS under Section 3.1(h).
Appears in 2 contracts
Sources: Supply Agreement (Graftech Inc), Supply Agreement (Graftech Inc)
Warranties. 8.1 5.1 The Sellers represent Seller and each of the Warrantors acknowledge that the Buyer is entering into this agreement on the basis of the Warranties.
5.2 The Seller and each of the Warrantors warrant jointly and severally to the Buyer in the terms set out in Schedule 5 that except as Disclosed, each Warranty is true, accurate and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or not misleading on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference agreement.
5.3 Without prejudice to the Completion Date; and
(b) it shall immediately disclose to right of the Buyer in writing to claim on any matter which becomes known other basis or take advantage of any other remedies available to it before Completion and which gives riseit, if any Warranty is breached or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove proves to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to Seller and each of the Buyer, Warrantors shall pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -demand:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it they would have been in if the Warranty had such Warranty not been true and breached or had not been untrue or misleading; together with the amount of ;
(b) all costs and expenses (including including, without limitation, damages, legal and other professional fees and expensescosts, the costs of management time penalties, expenses and all other consequential losses whether arising directly or indirectly arisingindirectly) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which as a result of such breach or of the Warranty being untrue or misleading; and
(c) any amount necessary to ensure that, after any Taxation of a payment made in accordance with clause 5.3(a) or clause 5.3(b), the Buyer is left with the same amount it would have had if the payment was not have incurred had such Warranty been true and not misleadingsubject to Taxation.
8.7 5.4 Warranties qualified by the expression so far as the Seller or the Warrantors are aware or any similar expression are deemed to be given to the best of the knowledge, information and belief of the Seller and each Warrantor after they have made all reasonable and proper enquiries of:
(a) The other Warrantors, directors, company secretary and employees of the Company and Seller
(b) The accountants and legal advisers for the Company and the Seller.
5.5 Each of the Sellers hereby Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any other Warranty or any other provision in this agreement.
5.6 Except for the matters Disclosed, no information of which the Buyer, its agents or its advisers has knowledge (in each case whether actual, constructive or imputed), or which could have been discovered (whether by investigation made by the Buyer or on its behalf), shall prejudice or prevent any Claim or reduce the amount recoverable under any Claim.
5.7 The Seller agrees that the supply of any information by or on behalf of the Company, or any of its employees, directors, agents or officers (Officers) to the Seller or their advisers in connection with the Warranties, the Disclosure Letter or otherwise shall not constitute a warranty, representation or guarantee as to the accuracy of such information in favour of the Seller. The Seller unconditionally and irrevocably waives all and any right which rights and claims that it may have against any of the Company, the or the Officers on whom that Seller has, or may have, relied in connection with the preparation of the Disclosure Letter, or agreeing the terms of this agreement, and further undertakes to the Buyer not to make any such claims.
5.8 The rights and remedies of the Buyer in respect of any misrepresentation, inaccuracy Claim or omission in or from any information or advice supplied or given claim under the Tax Covenant shall not be affected by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterCompletion.
Appears in 2 contracts
Sources: Share Purchase Agreement (Advanced Accelerator Applications S.A.), Share Purchase Agreement (Advanced Accelerator Applications S.A.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally 6.1 As an inducement to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ are hereby excludedand RBC to enter into this agreement and to carry out the Placing:
(a) the Limited Warrantors jointly and severally represent, warrant and undertake to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC that each of the Warranties in paragraphs 1 and 2 of Part A of Schedule 4;
(b) the Full Warrantors jointly and severally represent, warrant and undertake to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC that each of the Warranties in Part A of Schedule 4; and
(c) each Selling Shareholder for itself only and severally but not jointly represent, warrant and undertake to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC that each of the Warranties in Part B of Schedule 4 (only as to such Selling Shareholder and not as to any other Selling Shareholder or the Company), are, in each case, true and accurate in all respects and not misleading in any respect and references to the “Warrantors” shall be construed accordingly.
8.3 In 6.2 Each of the Warrantors acknowledges that each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC is entering into this agreement in reliance on each of the Warranties as given pursuant to Clause 6.1.
6.3 The Warranties given or referred to in this clause 6 are given as at the date of this agreement and shall be deemed to be repeated on Admission and shall remain in full force and effect notwithstanding the completion of the subscription for the Placing Shares and the acquisition of the Sale Shares, Admission or completion of all other matters and arrangements referred to in or contemplated by this agreement.
6.4 Each of the Warrantors undertakes, in so far as he is able, and in respect only of the Warranties relate given by such Warrantor, to matters use all reasonable endeavours not to cause and not to permit any Specified Event in relation to such Warranties to occur before the earlier of fact, they shall constitute representations in reliance upon which Admission and the Buyer has entered into termination of this Agreementagreement.
8.4 6.5 Each of the Warrantors undertakes that he shall notify each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC promptly if, at any time prior to Admission, he becomes aware that any of the Warranties is or has become untrue or inaccurate or misleading in any respect, or would have been untrue or inaccurate or misleading in any respect by reference to the facts and circumstances then existing.
6.6 Without prejudice to the terms, conditions or provisions of clause 5, if, at any time before Admission becomes effective, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or RBC receives notice pursuant to clause 6.5 or otherwise becomes aware of any of the Warranties being untrue, inaccurate or misleading in any respect or of any circumstances which would or is likely, in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or RBC, to cause any of the Warranties to become untrue, inaccurate or misleading in any respect by reference to the facts then existing, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or RBC may (without prejudice to their right to terminate this agreement pursuant to clause 11) require the Company, at its own expense, to make, or cause to be made, an announcement and/or despatch a communication to potential subscribers for Placing Shares or purchasers of Sale Shares, which announcement or communication shall be approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RBC.
6.7 In this clause 6 and in Schedule 4 reference to the knowledge, information, belief or awareness of the Company, any Director or any Selling Shareholder shall, unless the context otherwise requires, be deemed to include any knowledge, information, belief or awareness which such person would have if he had made due and careful enquiries of the facts and circumstances surrounding the relevant subject matter.
6.8 Each of the Warranties is a separate representation or warranty shall be construed independently and (except where this agreement provides otherwise) shall not be limited or restricted in its extent shall not be limited by reference to or application by inference from the terms provisions of any other of the other Warranties or by any other term provision of this Agreementagreement.
8.5 Each 6.9 The Company shall comply in all respects with its respective obligations under the terms, conditions and provisions of Schedule 7.
6.10 The provisions of Schedule 5 shall apply in relation to the liability of the Sellers undertakes with Directors under this agreement, and of each of the Buyer that -Warrantors under the Warranties.
6.11 If ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or RBC becomes aware of any Claim:
(a) each they shall promptly notify the Warrantor or Warrantors potentially liable under the Claim of such Claim and shall thereafter (subject to being indemnified by the relevant Warrantors to their reasonable satisfaction against all losses they may suffer or incur as a result of so doing), subject to the requirements (if any) of their insurers, consult with the relevant Warrantors regarding the conduct of the Warranties shall remain true Claim, provide the relevant Warrantors with such information and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 copies of such documents relating to the date Claim as such Warrantors may reasonably request and take into account any reasonable requests of this Agreement were the relevant Warrantors in connection with conduct but shall not be under any obligation to provide such Warrantors with a reference copy of any document which is, or in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or RBC is, likely to be privileged in the context of the Claim or to the Completion Dateextent that it is subject to a bona fide duty of confidentiality or it would materially prejudice any insurance cover to which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or RBC may from time to time be entitled; and
(b) it shall immediately disclose they agree that they will not without the prior written consent of the relevant Warrantors (not to be unreasonably withheld or delayed) settle or compromise or consent to the Buyer in writing entry of any matter which becomes known judgement with respect to it before Completion and which gives riseany pending or threatened claim save where:
(i) such settlement, compromise or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any consent includes an unconditional release of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member Company from all liability arising out of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleadingClaim; or
(bii) the amount necessary to put the Company and any member defence of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly Claim recommended by the Buyer relevant Warrantors under clause 6.12(a) above would, on the balance of probabilities, have no reasonable prospect of success; or
(iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or RBC, acting in good faith, reasonably determines that such claim will, or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingis likely to, cause reputational damage to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or RBC.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Placing Agreement (Resaca Exploitation, Inc.), Placing Agreement (Resaca Exploitation, Inc.)
Warranties. 8.1 The Sellers represent Vendor represents, warrants and warrant jointly undertakes to and severally to with the Buyer in Purchaser that each of the terms statements set out in Schedule 5 9 is now and each party acknowledges that the terms of Schedule 5 will at Completion be true and this clause 8 are in the circumstances fair and reasonableaccurate.
8.2 The Warranties are given subject to matters fully, fairly and accurately specifically disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information relating to the Target Group of which the Buyer Purchaser has actual, constructive knowledge (actual or imputed knowledge constructive) and no investigation or enquiry made by or on behalf of the Buyer Purchaser shall modify or discharge prejudice any claim made by the Sellers’ liability Purchaser under the Warranties or operate to reduce any amount recoverable, and liability in any way respect thereof shall not be confined to breaches discovered before Completion. No letter, document or other communication shall be deemed to constitute a disclosure for the purposes of this Agreement unless the same is accepted as such by the Purchaser and is expressly referred to in the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedDisclosure Letter.
8.3 In so far as The Vendor acknowledges that the Warranties relate to matters of fact, they shall constitute representations Purchaser has entered into this Agreement in reliance upon which the Buyer Warranties and has entered been induced by them to enter into this Agreement.
8.4 Each Without restricting the rights of the Warranties is a separate representation Purchaser or warranty and shall not be restricted in its extent or application by otherwise affecting the terms of any ability of the other Warranties or by Purchaser to claim damages on any other term of this Agreement.
8.5 Each of basis available to it, in the Sellers undertakes with the Buyer event that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove in this Clause 8 or in Schedule 9 is broken or (as the case may be) proves to be untrue or misleadingmisleading (subject to all qualifications and exceptions contained in the Warranties or such covenant or undertaking relating to materiality, material adverse effect or words of similar import), the Sellers Vendor shall, without prejudice to any other right or remedy which may be available to the Buyeron demand, pay to the Buyer (or to Purchaser or, at the relevant member of Purchaser’s direction, the Buyer’s Target Group) on demand -:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) 8.4.1 the amount necessary to put the Company and any member of the Buyer’s Target Group into the position it which would have existed if such Warranties had not been in broken or (as the case may be) had such Warranty been true and not misleadingmisleading or such covenants and undertakings had been fully performed and satisfied; together with the amount of and
8.4.2 all costs and expenses incurred by the Purchaser and/or the Target Group in connection with or as a result of such breach and any costs (including reasonable legal costs on a solicitor and own client basis), expenses or other professional fees and expensesliabilities which any of them may incur either before or after the commencement of any action in connection with (i) any legal proceedings in which the Purchaser claims that any of such Warranties has been broken or is untrue or misleading in which the Purchaser is the prevailing party or (ii) the enforcement of any settlement of, or order or judgment in respect of, such claim.
8.5 Where any statement in the costs of management time and all other consequential losses whether directly Warranties or indirectly arising) incurred directly any confirmation or indirectly certificate given by the Buyer (Vendor hereunder or pursuant hereto is qualified by the expression “so far as the Vendor is aware” or “to the best of the Vendor’s knowledge and belief” or any member similar expression, that statement shall be deemed to include an additional statement that it has been made after due enquiry.
8.6 The Vendor shall procure that (save only as may be necessary to give effect to this Agreement) neither they nor the Target Group shall do, allow or procure any act or omission before Completion which would constitute a breach of any of the Buyer’s Group) Warranties if they were given at Completion or which would make any of the Company which it would not have incurred had such Warranty been true and not misleadingWarranties inaccurate or misleading if they were so given.
8.7 Each The Vendor hereby agrees to disclose promptly to the Purchaser in writing immediately upon becoming aware of the Sellers hereby waives same, any right matter, event or circumstance (including any omission to act) which may arise or become known to it may have in respect after the date of this Agreement and before Completion which:-
8.7.1 constitutes a breach of or is inconsistent with any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for Warranties;
8.7.2 constitutes a breach of or is inconsistent with any of the purpose covenants or undertakings by the Vendor as are set out herein; or
8.7.3 has, or is likely to have, a material adverse effect on the financial position or prospects of assisting the Sellers to give Target Group.
8.8 In the event of its becoming apparent on or before Completion that the Vendor is in breach of any of the Warranties or any other term of this Agreement (subject to prepare all qualifications and exceptions contained in the Disclosure LetterWarranties or such other term relating to materiality, material adverse effect or words of similar import) in any material respect the Purchaser may (without any liability on its part) rescind this Agreement by notice in writing to the Vendor’s Solicitors.
8.9 The Vendor shall give to the Purchaser and the Purchaser’s Solicitors and Advisors both before and after Completion all such information and documentation relating to the Target Group as the Purchaser shall reasonably require to enable it to satisfy itself as to the accuracy and due observance of the Warranties.
8.10 The benefit of the Warranties may be assigned in whole or in part and without restriction by the person for the time being entitled thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Biopack Environmental Solutions Inc.)
Warranties. 8.1 The Sellers represent and warrant jointly and 7.1 Each of the Warrantors acknowledges that the Buyer is entering into this agreement on the basis of the Warranties.
7.2 Each of the Warrantors severally warrants to the Buyer that each of the Title Warranties is true, accurate and not misleading on the Completion Date in respect of himself and in respect of those Sale Shares or Option Shares, as applicable, held by him, her or it, except as Disclosed.
7.3 Subject to clause 7.4, each of the terms Warrantors severally and proportionately warrant to the Buyer that each Warranty (other than the Title Warranties to which the provisions of clause 7.2 apply) is true, accurate and not misleading on the date of this Agreement, except as Disclosed.
7.4 The liability of the Warrantors under this clause 7 and the Warranties shall be subject to the limitations set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable8.
8.2 7.5 The Warranties are given deemed to be repeated on the Completion Date, subject to any matters fullyDisclosed in any Supplemental Disclosure Letter, fairly and accurately disclosed by reference to the facts then existing. Any reference made to the date of this agreement (whether express or implied) in sufficient detail relation to enable any Warranty (other than warranty 4.1) shall be construed, in connection with the repetition of the Warranties, as a reference to the date of such repetition. The Warrantors shall be entitled to Disclose any matter arising during the Interim Period against any of the Warranties given as at the Completion Date through the delivery of the Supplemental Disclosure Letter to the Buyer at Completion.
7.6 Each of the Warrantors shall use all reasonable endeavours to understand their nature and scope in ensure that the Disclosure Letter (‘Disclosed’) but no other information Company does not do anything during the Interim Period which would be materially inconsistent with any of which the Warranties, breach any Warranty or cause any Warranty to be untrue or misleading.
7.7 If at any time during the Interim Period any of the Warrantors becomes aware that a Warranty has been breached, is untrue or misleading, or has a reasonable expectation that any of those things might occur, it severally agrees that it shall, as soon as reasonably practicable, notify the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge relevant occurrence summarizing the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) nature of the Law matter in so far as it is known to that Warrantor.
7.8 Warranties qualified by the expression “so far as the Warrantors are aware” or any similar expression are deemed to be given to the best of Property the knowledge, information and belief of each of the Warrantors after they have made due and careful enquiries having regard to the subject matter of the relevant Warranty of the Directors (Miscellaneous Provisionsas listed in Schedule 2) and each of ▇▇▇▇▇ ▇’▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ are hereby excluded▇▇▇.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 7.9 Each of the Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any other Warranty or any other provision in this agreement.
7.10 With the exception of the matters Disclosed, no information of which the Buyer and/or its agents and/or its advisers has constructive or imputed knowledge shall prejudice any Claim or Tax Warranty Claim or reduce any amount recoverable thereunder.
7.11 Each of the Warrantors agrees that the supply of any information by the Company or by or on behalf of any of its employees, directors, agents or officers (the “Officers”) to the Sellers or their advisers in connection with the Warranties, the information Disclosed in the Disclosure Letter or otherwise shall not constitute a separate warranty, representation or warranty guarantee as to the accuracy of such information in favour of the Warrantors. The Warrantors unconditionally and irrevocably waive all and any rights and claims that they may have against the Company or the Officers on whom the Warrantors have, or may have, relied in agreeing the terms of this agreement, and further undertakes to the Buyer not to make any such claims.
7.12 Each of the Warrantors agrees that, subject to the repayment of the Outstanding Company Indebtedness, the sale of their Material Sale Shares or Material Option Shares (as the case may be) pursuant to the terms of this agreement shall be deemed to terminate any existing rights they may have against the Company, whether pursuant to the terms of the Investment Agreement, in their capacity as shareholder or optionholder or otherwise as a holder of securities in the Company, including, without limitation, any rights of pre-emption they may have over the transfer or issuance of any Ordinary Shares or other securities in the Company.
7.13 Each of the Warrantors agrees that on the Completion Date they shall unconditionally and irrevocably waive all and any rights that they may have against the Company and further undertakes to the Buyer not to make any such claims, save in respect of any unpaid salary, fees, commissions or bonuses due at Completion under any document Disclosed.
7.14 The rights and remedies of the Buyer in respect of any Claim, any Tax Warranty Claim or any Tax Covenant Claim shall not be affected by Completion but the Buyer shall have no right to rescind or terminate this agreement after Completion and the Buyer’s sole remedy for breach of any Warranty shall be against the Warrantors in damages subject to the limitations contained in this agreement.
7.15 The Buyer and the Guarantor warrant to the Material Sellers and the Material Optionholders that:
7.15.1 the execution and delivery of this agreement and the other documents referred to in it and the completion of the transactions contemplated hereby, have, where required, been duly and validly authorised and no other proceedings or actions on the part of the Buyer and/or the Guarantor are necessary to authorise this agreement and the other documents referred to in it or to complete the transactions contemplated herein; and
7.15.2 the execution and delivery by the Buyer and the Guarantor of this agreement and the documents referred to in it in compliance with their respective terms shall not breach or constitute a default under any agreement or instrument to which the Buyer or the Guarantor is a party or by which either of them us bound or any order, judgment, decree or other restriction applicable to the Buyer or the Guarantor.
7.16 The Buyer and the Guarantor confirm to the Material Sellers and the Material Optionholders that they are not, as at the date of this agreement aware (based on the Buyer’s and the Guarantor’s actual awareness by reference to the facts in existence at the date of this agreement, and without having made any enquiry, other than pursuant to the financial and legal due diligence undertaken in connection with the Transaction) of any matter that would cause the Buyer to bring a Claim, Tax Warranty Claim or Tax Covenant Claim; provided that the Buyer shall not be restricted in its from bringing any Claim, Tax Warranty Claim or Tax Covenant Claim to the extent or application by the terms that any matter of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with which the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date Guarantor are aware as if any express or implied reference in Schedule 5 to at the date of this Agreement were a agreement which they did not know (based on the Buyer’s and the Guarantor’s actual awareness by reference to the Completion Date; and
(b) it shall immediately disclose facts in existence at the date of this agreement, and without having made any enquiry or taken any advice, other than pursuant to the Buyer financial and legal due diligence undertaken in writing connection with the Transaction) would cause a Claim, Tax Warranty Claim or Tax Covenant Claim results (directly or indirectly) in any matter which becomes known loss, damage, expense, cost or liability of any kind whatsoever to it before Completion and which gives risethe Company, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any asset of the Warranties shall prove to be untrue or misleadingCompany, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to any asset of the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by Guarantor which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by enable the Buyer (to bring a Claim, Tax Warranty Claim or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingTax Covenant Claim.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Share Purchase Agreement (8x8 Inc /De/), Share Purchase Agreement
Warranties. 8.1 5.1 The Sellers represent Vendor hereby represents and warrant jointly and severally warrants to the Buyer in Purchaser (for itself and for the terms benefit of its successors and assignors) that the warranties set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 below ("Warranties") are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to in all respects as at the time of Completion:-
(1) the Sale Shares are fully paid or credited as fully paid and including the Completion Date are as if any express or implied reference in Schedule 5 to at the date of this Agreement were a reference to beneficially owned by the Completion DateVendor free from all Encumbrances and upon Completion, the legal and beneficial ownership of the Sale Shares will be vested in the Purchaser or, as the case may be, its nominees free from all Encumbrances together with all rights now or attaching thereto with effect from Completion; and
(b2) it shall immediately disclose to following Completion, the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under Purchaser will become the Warranties or which would materially affect sole shareholder of Jointland beneficially holding not less than 50.5% of the willingness total issued share capital of a prudent purchaser for value to purchase the Shares on the terms of this AgreementJointland.
8.6 If any of 5.2 The Vendor agrees to fully indemnify and keep the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) Purchaser and its assigns fully indemnified on demand and on a dollar-
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true for-dollar basis from and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of against all losses, liabilities damages, costs and expenses (including legal expenses) which the Purchaser and other professional fees and expenses, the costs its assigns may incur or sustain from or in consequence of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties not being correct or fully complied with. This indemnity shall be without prejudice to prepare any other rights and remedies of the Disclosure LetterPurchaser and its assigns in relation to any such breach of Warranties and all such rights and remedies are hereby expressly reserved.
5.3 The Vendor acknowledges that the Purchaser in entering into this Agreement is relying on such Warranties. The Warranties shall survive Completion, but the Vendor shall not be liable for any claim in respect of the Warranties and this Agreement unless the Vendor shall have received from the Purchaser written notice of such claim specifying in reasonable details the event or default to which the claim relates and the nature of the breach and (if capable of being quantified at that time) the amount claimed not later than the date falling on the expiry of 18 months from the date of Completion (the "Warranties Expiry Date").
5.4 Notwithstanding any provision herein, the liability of the Vendor in connection with the Warranties and this Agreement shall cease on the Warranties Expiry Date except in respect of the matters which have been the subject of a bona fide claim in writing notified to the Vendor in compliance with Clause 5.3 as before such date.
Appears in 2 contracts
Sources: Purchase Agreement (Jointland Development, Inc.), Purchase Agreement (Jointland Development, Inc.)
Warranties. 8.1 The Sellers represent (a) Cortendo represents and warrant jointly warrants to ATL and severally to agrees that on the Buyer in the terms set out in Schedule 5 Start Date and separately on each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify Initial Shares Completion Date and Milestone Shares Completion Date that:
(i) it is a person to whom an offer of the Subscription Shares for issue may be made without a disclosure document (as defined by the Corporations Act) on the basis that it is a professional investor or discharge sophisticated investor (within the Sellers’ liability under the Warranties in any way and the provisions meaning of section 6(2) 708 of the Law Corporations Act) exempt from the disclosure requirements of Property Part 6D.2 of the Corporations Act or otherwise a person to whom an offer of the Subscription Shares for issue may be made without disclosure to investors in reliance on one or more exemptions in section 708 of the Corporations Act;
(Miscellaneous Provisionsii) in connection with its entry into this agreement and its subscription for the Subscription Shares under this agreement, it is in compliance with all relevant Laws and regulations (including, without limitation, the requirements of the Foreign Acquisitions and Takeovers ▇▇▇ ▇▇▇▇ are hereby excluded.(Cth) and Division 3 of Part 7.10 of the Corporations Act) and will not cease to be in compliance by performing its obligations under this agreement;
8.3 In so far (iii) it has made its own enquiries and relied upon its own assessment of the Subscription Shares and has conducted its own investigation with respect to the Subscription Shares including, without limitation, any restrictions on re-sale of the Subscription Shares (including the restrictions in sections 707(2), 707(3) and 707(5) of the Corporations Act) and the particular tax consequences of subscribing, owning or disposing of the Subscription Shares in light of its particular situation, as well as any consequences arising under the Warranties relate laws of any jurisdiction, and has decided to matters agree to subscribe for the Subscription Shares based on its own enquiries;
(iv) it is not acquiring the Subscription Shares with the purpose of factselling or transferring the Subscription Shares, they shall or granting, issuing or transferring interests in, or options over, the Subscription Shares;
(v) this agreement does not constitute representations financial product advice or a recommendation to subscribe for any Subscription Shares and that in reliance upon which the Buyer has entered negotiating and entering into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty agreement ATL has not had regard to its particular objectives, financial situation and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Dateneeds; and
(bvi) it shall immediately disclose to has such knowledge and experience in financial and business matters that it is capable of evaluating the Buyer merits and risks of subscribing for, and acquiring, the Subscription Shares for itself and for each other person for whose benefit it will be subscribing for, and acquiring, the Subscription Shares, and it has determined that the Subscription Shares are a suitable investment for itself and each such other person, both in writing any matter which becomes known to it before Completion nature and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any number of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; orSubscription Shares.
(b) Cortendo acknowledges that ATL and its Related Bodies Corporate are entitled to, and will, rely upon the amount necessary to put the Company truth and any member accuracy of the Buyer’s Group into acknowledgements, representations, warranties and agreements given by Cortendo in this clause 10.6.
(c) ATL represents and warrants to Cortendo and agrees that on the position it would have been in had such Warranty been true Start Date and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member separately on each of the Buyer’s GroupInitial Shares Completion Date and Milestone Shares Completion Date that the Subscription Shares can lawfully be offered, issued and allotted to Cortendo under all applicable laws without the need for any registration, lodgement or other formality (including, without limitation, preparation or lodgement of any prospectus or other disclosure document);
(d) or ATL acknowledges that Cortendo is entitled to, and will, rely upon the Company which it would not have incurred had such Warranty been true truth and not misleading.
8.7 Each accuracy of the Sellers hereby waives any right which it may have in respect of any misrepresentationacknowledgements, inaccuracy or omission in or from any information or advice supplied or representations, warranties and agreements given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterATL in this clause 10.6.
Appears in 2 contracts
Sources: Technology Licence Agreement (Cortendo AB), Technology Licence Agreement (Cortendo AB)
Warranties. 8.1 The 6.1 Each of the Sellers represent severally warrants to the Buyer in relation to itself or himself only, and warrant jointly not in relation to any other Seller, in the terms of the Title Warranties, subject to the exclusions, limitations and qualifications set out in this clause 6 and Schedule 7.
6.2 Each of the Warrantors severally and proportionately, in the Agreed Proportions, warrants to the Buyer in the terms set out of the Business Warranties subject to:
(a) each and any matter fairly disclosed or referred to in Schedule 5 and each party acknowledges that the Disclosure Letter, the Disclosure Documents or provided for under the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject Agreement provided such matters will be treated as fairly disclosed or referred to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter or Disclosure Documents only to the extent that such disclosure is sufficient to enable a reasonable buyer to make an informed assessment of the matter purported to be disclosed after taking appropriate advice upon the relevant Warranty and the disclosure;
(‘Disclosed’b) but no other any information of which obtained by the Buyer has actual, constructive or imputed knowledge and no any of its advisers during the course of any investigation (whether authorised by the Sellers or enquiry made not) by or on behalf of the Buyer shall modify or discharge into the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) affairs of the Law Group Companies and any other information of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer or any other member of the Buyer's Group may have actual or constructive knowledge (all such information being deemed to be disclosed to the Buyer); and
(c) the exclusions, limitations and qualifications set out in this clause 6 and Schedule 7.
6.3 Each of the Title Warranties and the Business Warranties shall be construed as a separate and independent warranty and, subject to clauses 6.1 and 6.2 and where this Agreement expressly provides otherwise, each Title Warranty and each Business Warranty is not limited by the other provisions of this Agreement, including the other Title Warranties and Business Warranties.
6.4 The Buyer acknowledges that it does not rely on and has entered not been induced to enter into this Agreement on the basis of any indemnities, warranties, representations, covenants, undertakings, or other assurances or statements whatsoever, other than those expressly set out in this Agreement and acknowledges that none of the Sellers and none of the Group Companies nor any of their agents, officers or employees have given any indemnities, warranties, representations, covenants, undertakings, or other assurances or statements other than those expressly set out in this Agreement.
8.4 Each 6.5 Subject to clause 11.6, the sole remedy of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms Buyer for any breach of any of the other Warranties or by and any other term breach of this AgreementAgreement by the Sellers shall be an action for damages. The Buyer shall not be entitled to rescind or terminate this Agreement in any circumstances whatsoever, other than any such entitlement arising due to fraudulent misrepresentation.
8.5 Each of 6.6 Where any Business Warranty is qualified by the Sellers undertakes with the Buyer that -
(a) expression "so far as each of the Warranties Warrantors is aware" or any expression having a similar effect, that Business Warranty shall remain true and accurate on each day up be deemed to and including include an additional statement that it has been made after reasonable enquiry by the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; andWarrantors.
(b) it 6.7 Each Seller shall immediately promptly disclose to the Buyer in writing any matter or thing which arises or of which it becomes known aware after entering into this Agreement which is inconsistent with or a breach of any of the Title Warranties given by it or which might render any of the Title Warranties misleading.
6.8 Each Warrantor shall promptly disclose to the Buyer any matter or thing which arises or of which it before Completion and becomes aware after entering into this Agreement which gives rise, is inconsistent with or might give rise, to a claim under breach of any of the Business Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If might render any of the Business Warranties misleading.
6.9 The Sellers shall prove to be untrue or misleading, not (if a claim is made against any of them in connection with the Sellers shall, without prejudice to any other right or remedy which may be available sale of the Shares to the Buyer) make any claim against any Group Company or against any director, pay to the Buyer (employee, agent or to the relevant member officer of any Group Company on whom any of the Buyer’s Group) on demand -
(a) Sellers may have relied before agreeing to any term of this Agreement or authorising any statement in the amount by Disclosure Letter. The Sellers acknowledge that they have no rights to make any such claim. This shall not prevent any Seller from claiming against any other Seller under any right of contribution or indemnity to which the value he may be entitled. The rights of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the each Group Company and any member director, employee, agent or officer of any Group Company under this clause are subject to the Buyer’s Group into the position it would have been provisions of clause 32 (rights of third parties).
6.10 Unless expressly provided otherwise in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensesthis Agreement, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each liability of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Lettertheir respective obligations and liabilities under this Agreement shall be several.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Jones Group Inc)
Warranties. 8.1 7.1. The Sellers represent and acknowledge that the Buyers are entering into this Agreement on the basis of the Sellers’ Warranties. The Sellers’ Warranties are given in respect of the Target Group and, where applicable, in respect of the Dutch Business.
7.2. The Sellers warrant jointly and severally to the Buyer Buyers that, except as Disclosed in the terms set out Disclosure Letter (in Schedule 5 respect of the Sellers’ Warranties given on the date of this Agreement) and/or the Supplementary Disclosure Letter (in respect of the Sellers’ Warranties given on the Completion Date), each Sellers’ Warranty is true, accurate and not misleading on the date of this Agreement and on the Completion Date, in each party acknowledges that case by reference to the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonablefacts then existing.
8.2 7.3.1. The Warranties are deemed to be repeated on the Completion Date, by reference to the facts then existing. Any reference made to “the date of this Agreement” or “the date hereof” (whether express or implied) in relation to any Warranty shall be construed, in connection with the repetition of the Warranties, as a reference to the Completion Date;
7.3.2. In the Warranties given subject on the date of this Agreement references to matters fullythe “Accounts” shall be deemed to be references to the 2012 Accounts and the 2012 Cangenix Accounts and in the Warranties given on the Completion Date references to the “Accounts” shall be deemed to be references to the 2013 Accounts and the 2012 Cangenix Accounts.
7.4. If at any time during the Interim Period the Sellers become aware that a Sellers’ Warranty has been breached, fairly and accurately disclosed is untrue or is misleading, or have a reasonable expectation that any of those things might occur, it shall promptly:
7.4.1. notify the Buyers of the relevant occurrence in sufficient detail to enable the Buyer Buyers to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf make an accurate assessment of the Buyer shall modify situation; and
7.4.2. if requested by the Buyers, use its reasonable endeavours to prevent or discharge remedy the notified occurrence.
7.5. If a Sellers’ liability under Warranty is qualified by the Warranties in any way and expression so far as the provisions of section 6(2) Seller is aware or to the best of the Law knowledge, information and belief of Property (Miscellaneous Provisions) the Sellers or any similar expression, such awareness or knowledge, information or belief shall be deemed to be given by the Sellers after they have made reasonable enquiries of Onno van ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Jetten, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ are hereby excludedMontana, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
8.3 In so far as 7.6. Each of the Sellers’ Warranties relate is separate and, unless otherwise specifically provided, is not limited by reference to matters of fact, they shall constitute representations any other Sellers’ Warranty or any other provision in reliance upon which the Buyer has entered into this Agreement.
8.4 Each 7.7. Except for the matters specifically disclosed, no information of which the Warranties is a separate representation Buyers, their agents or warranty and shall not be restricted advisers has knowledge (in its extent each case whether actual, constructive or application imputed), or which could have been discovered (whether by investigation made by the terms Buyers or on their behalf), shall prejudice or prevent any Claim or reduce the amount recoverable under any Claim.
7.8. The Buyers hereby acknowledge that they have no actual knowledge nor awareness of there being any breach of any of the other Sellers’ Warranties or by any other term the Sellers as at the date of this Agreement.
8.5 Each 7.9. The Sellers agree that the supply of any information by or on behalf of any member of the Target Group or the Dutch Seller or any of their respective employees, directors, agents or officers (“Officers”) to the Sellers undertakes or their advisers in connection with the Buyer that -
(a) each Sellers’ Warranties, the Disclosure Letter or otherwise shall not constitute a warranty, representation or guarantee as to the accuracy of such information in favour of the Warranties shall remain true Sellers. Save in the case of fraud, the Sellers unconditionally and accurate on each day up to irrevocably waives all and including any rights and claims that they may have against any member of the Completion Date as if Target Group or any express Officer or implied reference Employee in Schedule 5 respect of or relating to the date preparation of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives riseDisclosure Letter, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on agreeing the terms of this Agreement or otherwise (including, without limitation, in connection with matters contemplated herein and, in respect of any Officer or Employee, in connection with his/her employment or engagement in the period up to the date hereof), and further undertake to the Buyers not to make any such claims.
7.10. The Buyers warrant to the Sellers that, relying upon the accuracy of the turnover information relating to the Services Division which was posted by the Sellers in the data room section 18 under the name “Revenue (2012) split by country.xlsx”, they have obtained all mandatory approvals and consents and made all mandatory filings and notifications required in connection with the Transaction in accordance with applicable competition law and regulations.
7.11. The rights and remedies of the parties in respect of any claim under this Agreement or claim under the Tax Deed shall not be affected by Completion or failure by the other parties to rescind this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available 7.12. Save to the Buyerextent expressly provided otherwise in this Agreement all warranties, pay to the Buyer (or to the relevant member indemnities, undertakings, agreements, covenants and obligations of the Buyer’s Group) on demand -
(a) the amount by which Sellers under this Agreement are joint and several and the value Sellers shall be jointly and severally liable in respect of any Relevant Claim brought against either one of the Shares is less than it would have been had such Warranty been true Sellers; and not misleading; or
(b) the amount necessary to put Buyers under this Agreement are joint and several and the Company Buyers shall be jointly and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have severally liable in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee claim brought against either one of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterBuyers.
Appears in 2 contracts
Sources: Sale & Purchase Agreement (Galapagos Nv), Sale & Purchase Agreement (Charles River Laboratories International Inc)
Warranties. 8.1 The Sellers represent Employee-Contributor agrees, represents and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -warrants that:
(a) each of The Employee-Contributor Contribution Consideration is fair value for his or her Company Stock, and such fair value received and the Warranties shall remain true releases and accurate on each day up to other agreements made by the Company, Laredo and including the Completion Date as if any express LPI in this Release are good and sufficient consideration for his or implied reference in Schedule 5 to the date her execution of this Agreement were a reference to the Completion Date; andRelease.
(b) it shall immediately disclose Employee-Contributor will sign this Release when the Contribution Agreement is executed, but the Release will not become effective until Closing. In the event that the Contribution Agreement is terminated prior to the Buyer in writing any matter which becomes known to it before Completion Closing, this Release shall thereupon become void and which gives rise, of no force or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreementeffect.
8.6 If (c) Employee-Contributor has not filed any claims, appeals, complaints, charges or lawsuits against the Company with any governmental agency or court.
(d) Employee-Contributor acknowledges and agrees that he or she (i) has received or had full access to all the information he or she considered necessary or appropriate to make an informed decision with respect to his or her execution of the Warranties shall prove Contribution Agreement and this Release and (ii) has had an opportunity to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true ask questions and not misleading; or
(b) the amount necessary to put receive answers from the Company and any member Laredo regarding the terms and conditions of the Buyer’s Group into Contribution Agreement and this Release; (iii) is not waiving any rights or claims under the position it would have been Age Discrimination in Employment Act of 1967, as amended (the “ADEA”) or Chapter 21.001 of the Texas Labor Code that may arise after the Closing Date, or any rights or claims to test the knowing and voluntary nature of this Release under the Older Workers’ Benefit Protection Act, as amended; (iv) has carefully read and fully understands all of the provisions of this Release; (v) knowingly and voluntarily agrees to all of the terms set forth in this Release and to be bound by this Release; (vi) is hereby advised in writing to consult with an attorney and tax advisor of her/his choice prior to executing this Release and has had the opportunity and sufficient time to seek such Warranty been true advice; and not misleading; together with (vii) is releasing the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time Company from any and all other consequential losses whether directly claims he or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it she may have in respect of any misrepresentationagainst the Company, inaccuracy or omission in or from any information or advice supplied or given by any directorrelating to her/his employment and separation until and including the Closing Date, officer or employee of including claims arising under the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterADEA.
Appears in 2 contracts
Sources: Contribution Agreement (Laredo Petroleum - Dallas, Inc.), Contribution Agreement (Laredo Petroleum Holdings, Inc.)
Warranties. 8.1 11.1.1 The Sellers represent and warrant jointly and severally to Company makes the Buyer in the terms Warranties set out in Schedule 5 and each party acknowledges that this Clause 11 (Warranties) to the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or Subscriber on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference and immediately prior to the Completion Date; andissuance of the Subscription Shares.
11.1.2 The Warranties given pursuant to Clause 11.1.1 on the date of this Agreement and immediately prior to the issuance of the Subscription Shares are subject to any matters fairly disclosed in the Signing Disclosure Letter.
11.1.3 The Business Warranties to be given by the Company immediately prior to the issuance of the Subscription Shares (bbut not, for the avoidance of doubt, any other Warranties to be given at such time or at any other time pursuant to this Agreement) shall be subject to any events or matters which are fairly disclosed in the Closing Disclosure Letter and no right to claim for damages as a result of a breach of any such Business Warranty shall arise in favour of the Subscriber in the case of any such Business Warranty being untrue or inaccurate immediately prior to the issuance of the Subscription Shares if (and solely to the extent that) the relevant event or matter is fairly disclosed in the Closing Disclosure Letter, provided that (in each case) any such event or matter could not reasonably have been avoided or prevented by the Company, any other member of the Group (as applicable) or their respective directors, officers, employees and agents.
11.1.4 Any Warranty qualified by the expression “so far as the Company is aware” or any similar expression shall, unless otherwise stated, be deemed to refer to the actual knowledge of [***] and [***] at the time the Warranty is given (with no imputation of the knowledge of any other person), provided that where the expression “so far as the Company is aware” is used in Clause 11.15 (Anti-Corruption Laws, Sanctions Laws and other), then it shall immediately disclose be deemed to refer to the Buyer actual knowledge of [***] and [***] at the time any relevant Warranty contained in writing Clause 11.15 (Anti-Corruption Laws, Sanctions Laws and other) is given (with no imputation of the knowledge of any matter which becomes known to it before Completion and which gives riseother person). For the avoidance of doubt, any deemed actual knowledge of [***] and/or [***] for the purposes of any Warranty qualified by the expression “so far as the Company is aware” or might give rise, to a claim any similar expression shall not create any liability for such persons under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Warranties. 8.1 The Sellers represent and warrant jointly and severally Subject to sub-clauses 8.3 to 8.5, the Seller warrants to the Buyer in Purchaser that the terms Warranties (except the Warranty set out in Schedule 5 and each party acknowledges that the terms at paragraph 3 of Schedule 5 3 (Warranties)) are true and accurate at the date of this clause 8 are Agreement (or such other date if so specified in such Warranty) and the Warranties shall be deemed to be repeated on the Completion Date by reference to the facts and circumstances fair and reasonableas at the Completion Date (or such other date if so specified in such Warranty).
8.2 Subject to sub-clause 8.4, the Purchaser warrants to the Seller that the Warranties set out at paragraphs 2.1, 2.2, 2.3 and paragraph 3 of Schedule 3 (Warranties) are true and accurate at the date of this Agreement (or such other date if so specified in such Warranty) and the Warranties shall be deemed to be repeated on the Completion Date by reference to the facts and circumstances as at the Completion Date (or such other date if so specified in such Warranty).
8.3 The Purchaser acknowledges that it does not rely on, and has not relied on or been induced to enter into this Agreement on the basis of, any warranties, representations, covenants, undertakings, indemnities or other statements whatsoever arising from its due diligence or the pre-contractual negotiations, other than (i) the Warranties; and (ii) the Accounts and the public announcements of the Company made through the Istanbul Stock Exchange (collectively the “Public Information”) and acknowledges that neither the Seller nor any of its agents, officers or employees:
(A) have given such warranties, representations, covenants, indemnities or statements other than the Warranties; nor
(B) should be liable in respect of any Public Information other than in accordance with sub-clause 8.8.
8.4 The liability of the Seller and the Purchaser in respect of Claims shall be limited as follows:
(A) the liability of the Seller in respect of any Claim (or series of related Claims with respect to related facts or circumstances):
(i) in relation to the Additional Warranties are given subject shall not (when aggregated with the amount of all other such Claims in relation to matters fully, fairly and accurately disclosed the Additional Warranties) exceed 20 per cent. of the Purchase Price; and
(ii) shall not (when aggregated with the amount of all other Claims against the Seller including any Claims under the Additional Warranties) exceed the Purchase Price;
(B) the liability of the Purchaser in sufficient detail respect of any Claim (or series of related Claims with respect to enable related facts or circumstances) shall not (when aggregated with the Buyer amount of all other Claims against the Purchaser) exceed the Purchase Price;
(C) other than any Claim in relation to understand their nature and scope in the Disclosure Letter Basic Warranties (‘Disclosed’) but no other information of to which the Buyer has actualapplicable English law statutory limitation period on claims shall apply), constructive or imputed knowledge and no investigation or enquiry made neither the Seller nor the Purchaser shall be liable in respect of any Claim unless written notice containing reasonable details (to the extent practicable) of such Claim is given by or on behalf of the Buyer claimant party to the other party by no later than 18 (eighteen) months from the Completion Date, provided that any such Claim shall modify (if not previously satisfied, settled or discharge withdrawn) be deemed to have been withdrawn and shall absolutely determine unless proceedings in respect of it have been properly commenced within 6 (six) months of such written notice. Where written notice of such Claim has been given and proceedings in respect of it have been properly commenced within the Sellers’ time periods set out in this sub-clause 8.4(C), then the subject of such Claim shall survive until such Claim has been finally resolved;
(D) neither the Seller nor the Purchaser shall be liable to make payment for any Claim based upon a liability which is contingent unless and until such contingent liability becomes an actual liability, provided that this shall not prevent the claimant party notifying the other of such Claim for the purposes of sub-clause 8.4(C) above save that in such circumstances the 6 (six) month period referred to in sub-clause 8.4(C) shall commence on the date on which the contingent liability becomes an actual liability;
(E) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the liability arises or is increased as a result of any legislative, legal or regulatory requirement not in force at the date of this Agreement, where such requirement has been made or issued outside the reasonable control of the Parties or has not been issued or made as a result of the breach of this Agreement by either Party;
(F) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the matter giving rise to such Claim has been made good or is otherwise compensated for without loss to the other party;
(G) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the same loss under such Claim has been recovered by the Warranties Seller or Purchaser (as applicable) under any provision of this Agreement or any other Transaction Document (including, for the avoidance of doubt, in respect of the Seller as a claiming party, as a result of any way and the provisions benefits conferred on it by virtue of section 6(2Clause 22 (Contracts (Rights of Third Parties) Act 1999) of the Law of Property Dogus SPA) and accordingly the Seller or the Purchaser (Miscellaneous Provisionsas applicable) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations may only recover once in reliance upon which the Buyer has entered into this Agreement.
8.4 Each respect of the Warranties same loss;
(H) the Seller and the Purchaser shall only be liable in respect of a Claim if and to the extent that such Claim is a separate representation or warranty and shall not be restricted in its extent or application admitted by the terms relevant party, the subject of an arbitral award or proven in a court of competent jurisdiction;
(I) any payment made by the Seller or any other person in respect of any Claim shall be deemed to be a reduction of the other Warranties Purchase Price; and
(J) neither the Seller nor the Purchaser shall be liable for any Claim to the extent that the matter giving rise to such Claim has been carried out with the express consent of the Parties. None of the limitations in this sub-clause 8.4 shall apply to the extent that any breach by a party of its obligations under this Agreement is caused by fraud, wilful default or by any other term of this Agreementwilful concealment.
8.5 Each of the Sellers undertakes Warranties shall be construed as a separate and independent warranty and (except where expressly provided to the contrary) shall not be limited or restricted by reference to or inference from the terms of any other Warranty.
8.6 Other than as expressly set out in this Agreement (including, for the avoidance of doubt the payment of the consideration in accordance with Clause 6 (Consideration)), neither the Seller nor the Purchaser shall be liable to make any payment under this Agreement nor exercise any right of set-off or counterclaim against or otherwise withhold payment of any sums stated to be payable by the other hereunder or under any other agreement subsisting between them unless and until the liability of the Seller or the Purchaser (as applicable) has been agreed or adjudged payable in legal or arbitration proceedings.
8.7 The Seller shall only be liable to make payment for any claim in connection with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date extent that the Purchaser has suffered or incurred Losses which relate to the Shares (and not, for the avoidance of doubt, to the shares it is acquiring from Dogus).
8.8 No provision of this Agreement were (including but not limited to sub-clause 8.3) is intended to limit or exclude any duty or liability that is imposed on the Seller as a reference seller of public securities pursuant to the Completion Date; and
(b) it shall immediately disclose laws of any applicable jurisdiction relating to public securities in relation to misselling, misleading statements or practices or the possession of inside information in relation to such public securities which matters are accordingly subject to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under laws of the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreementapplicable jurisdiction.
8.6 If 8.9 The Seller hereby irrevocably and unconditionally undertakes that it will not bring or conduct (in the absence of fraudulent or dishonest conduct or concealment) at any of the Warranties shall prove to be untrue time any claims or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right actionable rights which it may have in respect of any misrepresentationunder contract, inaccuracy law or omission in or from any information or advice supplied or given by any director, officer or employee of otherwise against the Company for the purpose of assisting the Sellers to give or any Company Group Member (or any of their respective directors, officers, employees or agents) arising out of or in connection with: (i) any matters relating to any period prior to Completion; or (ii) any matters for which it is or may be liable to the Warranties Purchaser arising out of or to prepare in connection with the Disclosure LetterTransaction.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally As at the Signing Date the Seller warrants to the Buyer that each Warranty and Tax Warranty is true and accurate and not misleading as at the date of this agreement, subject only to:
(a) any matter fairly disclosed in the Disclosure Letter;
(b) the limitations and qualifications set out in this clause 8 and Schedule 3; and
(c) in relation to the Tax Warranties only, the limitations and qualifications set out in Part 4 of Schedule 6.
8.2 Each Warranty and Tax Warranty made or given in respect of the Target shall be deemed to be a warranty made or given in respect of each member of the Target Group and (unless the context or subject matter otherwise requires) the expression the “Target” in the Warranties and the Tax Warranties shall be construed accordingly.
8.3 If any Warranty or Tax Warranty is qualified by the expression “so far as the Seller is aware” or “to the best of the knowledge, information and belief of the Seller” or words to such effect, such expression shall mean that the Seller shall be deemed to have knowledge of all facts, matters and circumstances actually known to the Seller and which would have been known to the Seller had it made all reasonable enquiries of the Seller’s Group regarding the subject matter of the Warranty or Tax Warranty.
8.4 Notwithstanding any other provisions of this agreement or any other agreement or document entered into pursuant to this agreement, none of the limitations contained in this clause 8, Schedule 3, Schedule 6 or the Disclosure Letter nor any statutory limitation shall apply to any claim for breach of the Warranties, the Tax Warranties or under the Tax Covenant where the fact, matter or circumstance giving rise to the claim arises as a result of fraud by the Seller.
8.5 If any amount is paid by the Seller in respect of a breach of any Warranty or Tax Warranty or otherwise pursuant to this clause 8, the amount of such payment shall be deemed to constitute a reduction in the consideration payable under this agreement.
8.6 The liability of the Seller under the Warranties, the Tax Warranties and the Tax Covenant should be limited pursuant to the provisions of Schedule 3 and Part 4 of Schedule 6.
8.7 The Seller agrees that any information supplied by the Target or the Subsidiary or by or on behalf of the employees, directors, agents or officers of the Target and the Subsidiary (“Officers”) to the Seller or its advisers in connection with the Warranties, the information disclosed in the Disclosure Letter or otherwise shall not constitute a warranty, representation or guarantee as to the accuracy of such information provided by the Target, the Subsidiary or the Officers in favour of the Seller, and the Seller hereby undertakes to the Buyer and to the Target, the Subsidiary and each Officer that it waives any and all claims which it might otherwise have against any of them in respect of such claims.
8.8 The Buyer warrants to the Seller in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable5.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Live Nation Entertainment, Inc.)
Warranties. 8.1 9.1 The Sellers represent and warrant jointly and severally Vendor hereby warrants to the Buyer Purchaser at the date of this Agreement and on the Effective Date:
(a) in the terms set out of the ‘A’ Warranties; and
(b) so far as the Vendor is aware, having made all reasonable enquiry in Schedule 5 and each party acknowledges that the circumstances in accordance with clause 9.2 below, in the terms of Schedule 5 and this clause 8 are the ‘B’ Warranties, save, in each case, to the extent that facts or circumstances fair and reasonable.
8.2 The inconsistent with the Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which or in the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf case of the Buyer shall modify Warranties that are repeated on the Effective Date only and in respect of events or discharge circumstances arising following the Sellers’ liability under date of this Agreement only), the Supplementary Disclosure Letter (if any) and for this purpose “fairly disclosed” for the purposes of the Disclosure Letter and the Supplementary Disclosure Letter (if any) means disclosed in such manner and with such detail as to enable the Purchaser to make a reasonable assessment of the matter concerned. For the purposes of the Warranties that are repeated on the Effective Date, any express or implied reference in any way and the provisions Warranties to the date of section 6(2) this Agreement shall be deemed replaced by a reference to the Effective Date,
9.2 For the purposes of clause 9.1(b), the level of the Law Vendor’s awareness shall be limited only to the actual awareness of Property (Miscellaneous Provisions) ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ are hereby excluded▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ having made reasonable enquiry of the Key Employees (but, for the avoidance of doubt, no other enquiries).
8.3 In so far as 9.3 The provisions of Schedule 6 which, among other things, negate, limit, regulate or otherwise affect the Warranties relate liability of the Vendor in relation to matters of factClaims shall remain in full force and be fully applicable in all circumstances and, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each particular, notwithstanding any breach of the Warranties is a separate representation or warranty any claim against the Vendor in respect of the Warranties, whatever its nature or consequences.
9.4 The Purchaser acknowledges and shall agrees that it does not be restricted rely on and has not been induced to enter into this Agreement on the basis of any warranties, representations, covenants, undertakings, indemnities or other statements whatsoever, other than those expressly set out in its extent or application by this Agreement and acknowledges and agrees that neither the terms of Vendor, nor any of the Company or its Subsidiaries, nor any of their agents, advisers, respective officers or employees have given any such warranties, representations, covenants, undertakings, indemnities or other Warranties statements including, without limitation, as to the accuracy or completeness of any information and/or documentation (including, without limitation: (i) the Information Memorandum; (ii) the contents of the Disclosure Letter; (iii) the contents of the Disclosure Documents; (iv) the contents of the Data Room; (v) the Environmental Reports; (vi) the Strategic Review; (vii) the PwC Report and (viii) any forecasts, estimates, projections, statements of intent or statements of opinion) provided to or held or used by the Purchaser, any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the BuyerPurchaser’s Group) on demand -Group or any of their respective advisers or agents (howsoever provided, held or used).
(a) the amount by which the value 9.5 The sole remedy of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and Purchaser for any member breach of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or any other breach of this Agreement by the Vendor shall be an action for damages. The Purchaser shall not be entitled to prepare rescind or terminate this Agreement in any circumstances whatsoever, other than any such right in respect of fraudulent misrepresentation.
9.6 Any information supplied by the Company or the Subsidiaries, their officers or employees to the Vendor in connection with, or to form the basis of, the Warranties or any matter covered in the Disclosure LetterDocuments shall be deemed not to include or have included a representation, warranty or guarantee of its accuracy to the Vendor and shall not constitute a defence to the Vendor to any claim made by the Purchaser. The Vendor hereby waives any and all claims against the Company, the Subsidiaries, their officers and employees in respect of any information so supplied.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Agco Corp /De)
Warranties. 8.1 The Sellers represent ▇▇▇▇▇ ▇▇ warrants that all Products shall conform to published specifications and warrant jointly be free in all material respects from defects in workmanship and severally to materials for a period of one (1) year commencing on the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms date of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf receipt of the Products by Buyer. The obligation of ▇▇▇▇▇ ▇▇ and Buyer’s sole and exclusive remedy hereunder for a breach of the foregoing warranty shall be limited, and at Altum RF’s option shall be: (i) the repair or replacement of any defective or damaged Products F.O.B Buyer’s place of manufacture; or (ii) a refund of the purchase price paid for the defective or damaged Products. Buyer shall modify or discharge the Sellers’ liability under the Warranties not return Products unless so authorized in any way and the provisions writing by an officer of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ are hereby excluded.
8.3 In so far ▇▇ shall have the right to inspect Products at Buyer’s location. Notwithstanding the foregoing warranties and remedies, ▇▇▇▇▇ ▇▇ shall have no obligation hereunder if Products become defective in whole or in part as the Warranties relate a result of improper use, alteration, neglect or abuse after having been delivered to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives riseBuyer, or might give risefor damage resulting from fire, flood or acts of God. ▇▇▇▇▇ agrees to a claim under indemnify ▇▇▇▇▇ ▇▇ against all claims arising out of or resulting from the Warranties operation or which would materially affect use of Buyer goods or products that include the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementProducts. EXCEPT AS SET FORTH HEREIN, IT IS EXPRESSLY AGREED THAT THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, OR ANY AFFIRMATION OF FACT, OR PROMISES, BY ▇▇▇▇▇ ▇▇ WITH REFERENCE TO THE PRODUCTS, WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON BY ▇▇▇▇▇ ▇▇ AND BUYER.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Purchase Order Terms and Conditions, Purchase Order Terms and Conditions
Warranties. 8.1 The Sellers represent and warrant jointly and severally Subject to the Buyer provisions of this Clause 8 and save as fairly disclosed under the terms of the Disclosure Letter or set out, referred to or noted in the Interests Documents, each Seller hereby warrants to the Purchaser solely in respect of those Interests identified in Part 1 of Schedule 1 to be transferred by that Seller at the date hereof in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable5.
8.2 The Purchaser hereby warrants to the Sellers at the date hereof in the terms set out in Schedule 6.
8.3 The sole remedy of the Purchaser in respect of any Relevant Claim shall be an action for damages. Save in the event of fraud by the Sellers, no right of rescission shall be available to the Purchaser by reason of any fact, matter or circumstance giving rise to a Relevant Claim.
8.4 A Seller shall not be liable for any Relevant Claim unless it shall have received from the Purchaser, as soon as practicable after the Purchaser becomes aware of the same, written notice containing reasonable details of the Relevant Claim including the Purchaser’s provisional estimate of the amount of the Relevant Claim provided always that such notice is received on or before the first anniversary of the Completion Date. If any delay by the Purchaser in notifying a Relevant Claim prejudices a Seller’s ability to avoid or mitigate its liability in respect of that Relevant Claim then the Seller’s liability to the Purchaser in respect thereof shall be reduced to the extent that the Seller is prejudiced by the delay. Any Relevant Claim made shall be deemed to have been withdrawn unless legal proceedings in respect thereof have been both issued and served on the Seller within six (6) months of the giving of such notice.
8.5 Except as set forth in Clause 8.1, neither the Sellers nor any of their Affiliates nor any officer, shareholder, director, employee, agent, consultant or representative of the Sellers or any of their Affiliates (including, without limitation, their auditors) makes any representation, warranty or undertaking, statement, opinion, information or gives any advice (including without limitation any representation, warranty, undertaking, statement, opinion, information or advice (a) communicated (orally or in writing) to the Purchaser or any Affiliate of the Purchaser or (b) made in any data, information or document communicated to the Purchaser or any Affiliate of the Purchaser or made by any officer, shareholder, director, employee, agent, consultant or representative of the Sellers or any Affiliate of the Sellers) (“Representations”) and the Purchaser acknowledges, affirms and warrants that it has not relied, and will not rely, upon any such Representation in entering into this Agreement or carrying out the transactions contemplated by this Agreement and that, where any Representation is repeated in this Agreement, all liability for misrepresentation whether negligent or innocent (but expressly excluding liability for fraudulent misrepresentation) is hereby excluded and the sole remedy of the Purchaser shall be such remedies as are set out in this Clause 8. The Purchaser hereby irrevocably and unconditionally waives any right it may have to claim damages for, or to rescind this Agreement by reason of any Representation not expressly set out in this Agreement (save in the case of fraud). Without limiting the generality of the foregoing, the Sellers make no representation or warranty as to: (i) the amounts, quality or deliverability of reserves of crude oil, natural gas or other hydrocarbons attributable to the Interests (ii) any geological, geophysical, engineering, economic or other interpretations, forecasts or evaluations, (iii) any forecast of expenditures, budgets or financial projections, or (iv) any geological formation, drilling prospect or hydrocarbon reserve.
8.6 The Sellers shall not be liable for any Relevant Claim to the extent that such Relevant Claim (or the subject matter thereof):
8.6.1 occurs or arises, or such Relevant Claim otherwise having arisen, is increased as a result of any act, matter, omission, transaction or circumstance which would not have occurred but for the passing of, or any change in, after the date hereof, any law, rule, regulation, interpretation of the law, or any administrative practice of any government, governmental department, agency, regulatory body or Person (including any passing of, or change in, any law, rule, regulation, interpretation of the law or any administrative practice as aforesaid which takes place retrospectively, or any increase in the rates of Taxation or any imposition of Taxation or any amendment to or the withdrawal of any extra-statutory concession or other practice previously made by or published by any Tax Authority (in whatever jurisdiction) and in force at the date of this Agreement);
8.6.2 occurs or arises, or such Relevant Claims otherwise having arisen, is increased as a result of any voluntary act, default, omission, transaction or arrangement after Completion by the Purchaser or any of its Affiliates;
8.6.3 occurs or arises, or such Relevant Claim otherwise having arisen is increased as a result of the Seller doing or omitting to do any act or thing at the request of or with the agreement of the Purchaser between the date of this Agreement and Completion; or
8.6.4 relates to any loss which is recoverable by the Purchaser from its insurers.
8.7 The liability of the Sellers in respect of any Relevant Claim (except a claim in respect of the Warranties are given in paragraphs 1 and 3 of Schedule 5) shall be limited as follows:
8.7.1 the Sellers shall have no liability except to the extent that the damages to which the Purchaser is entitled in aggregate exceed an amount equal to five percent (5%) (the “Claim Threshold”) of the Final Consideration provided that if the aggregate amount of Relevant Claims reaches the Claim Threshold the Purchaser shall be entitled (subject to matters fully, fairly the other provisions of this Clause 8) to recover in respect of each and accurately disclosed all such Relevant Claims and not just the excess over the Claim Threshold; and
8.7.2 the maximum aggregate liability of the Sellers in sufficient detail respect of all Relevant Claims shall not exceed an amount equal to enable one hundred percent (100%) of the Buyer to understand their nature and scope Final Consideration.
8.8 If:
8.8.1 the Purchaser becomes aware of any circumstance which may result in the Disclosure Letter (‘Disclosed’) but no Purchaser having a Relevant Claim against the Sellers as a result of or in connection with a liability or alleged liability to a third party; or
8.8.2 the Purchaser is or may be entitled by law to recover from some other information person, firm, authority or body corporate any sum in respect of which the Buyer has actualPurchaser may have a Relevant Claim, constructive the Purchaser shall promptly notify the Sellers thereof in writing and the Sellers shall be entitled (i) to take and/or require the Purchaser to take any action the Sellers might reasonably request to resist such liability or imputed knowledge and no investigation or enquiry made by or on behalf enforce such recovery (as the case may be), in both cases in the name of the Buyer shall modify or discharge Purchaser but at the cost and expense of the Sellers’ , and (ii) to have conduct of any appeal, dispute, compromise or defence of the dispute and of any incidental negotiations for the aforesaid purposes, and the Purchaser will give the Sellers all co-operation, access and assistance for the purposes of resisting such liability under or enforcing such recovery (as the Warranties in any way and case may be) as the Sellers may reasonably require PROVIDED THAT notwithstanding the provisions of section 6(2) this clause, the Purchaser shall not be obliged to take any action or do any act or thing that would in the reasonable view of the Law Purchaser have a material adverse effect on their business or reputation.
8.9 If the Sellers pay to the Purchaser an amount pursuant to a Relevant Claim and the Purchaser is entitled to recover from some other person any sum to which it would not have been or become entitled but for the circumstances giving rise to such Relevant Claim, the Purchaser shall promptly undertake all appropriate steps to enforce such recovery and shall forthwith repay to the Sellers the lesser of Property (Miscellaneous Provisionsi) the amount paid to the Purchaser by the Sellers pursuant to the Relevant Claim; and (ii) the amount recovered from the third party, in each case less all costs, charges and expenses reasonably incurred by the Purchaser in obtaining (or consequent upon obtaining) that payment and in recovering that amount from the third party.
8.10 Nothing in this Agreement shall relieve the Purchaser of any duty, whether at common law or otherwise, to mitigate any loss or damage incurred by it in respect of any breach by the Sellers of the Warranties or any other term of this Agreement or in respect of its subject matter.
8.11 The Purchaser shall not be entitled to recover from the Sellers the same sum or loss more than once in respect of any Relevant Claim.
8.12 Where a warranty is qualified by the words “so far as the Seller is aware”, or any similar expression, each of the Sellers acknowledges that it has represented to the Purchaser that such warranty has been so qualified after due enquiry of the Aberdeen based Senior Management Team and ▇▇▇▇▇▇▇▇ ▇▇▇▇ are hereby excluded▇▇▇, Asset Manager and that the Seller has used reasonable endeavours to ensure that the statement contained in that warranty is accurate. The Purchaser acknowledges that neither the persons referred to above nor the Sellers have any obligation to make enquiries of any other person in relation to the Warranties.
8.3 In so far as 8.13 The Purchaser acknowledges and agrees that at the Warranties relate to matters time of fact, they shall constitute representations in reliance upon which the Buyer has entered entering into this Agreement.Agreement it does not have:
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms 8.13.1 knowledge of any of matter or thing which, save as disclosed in the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes Disclosure Letter, is inconsistent with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion DateWarranties; and
(b) it 8.13.2 knowledge that the matter or thing could result in a Relevant Claim, and such acknowledgement shall immediately disclose to the Buyer in writing be binding on any matter which becomes known to it before Completion and which gives rise, or might give rise, to person bringing a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together connection with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingWarranties.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Hive in Agreement, Hive in Agreement (Endeavour International Corp)
Warranties. 8.1 9.1 The Sellers represent Seller warrants and warrant jointly and severally represents to the Buyer Buyer, except as Disclosed, in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Tax Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference agreement.
9.2 Without prejudice to the Completion Date; and
(b) it shall immediately disclose to right of the Buyer in writing to claim on any matter which becomes known other basis or take advantage of any other remedies available to it before Completion and which gives riseit, if any Warranty or might give rise, to a claim under the Warranties Tax Warranty is breached or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove proves to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, Seller shall pay to the Buyer (or as it may direct):
9.2.1 an amount equal to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member each of the Subsidiaries into the position they would have been in if the Warranty or Tax Warranty had not been breached or had not been untrue or misleading; and
9.2.2 all reasonable third party costs (including the reasonable fees of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees advisers) and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) expenses reasonably incurred directly or indirectly by the Buyer (or any member Group Company as a result of such breach, or of the Buyer’s Group) Warranty or the Company which it would not have incurred had such Tax Warranty been true and not being untrue or misleading.
8.7 9.3 Warranties or Tax Warranties qualified by the expression so far as the Seller is aware or any similar expression are deemed to be given to the best of the knowledge, information and belief of the Seller after it has made due and careful enquiries of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and of the Group’s legal advisers and auditors (including, for the avoidance of doubt, Ridouts LLP) and the knowledge, information and belief of the Seller shall be deemed to include the actual knowledge, information and belief of each such person.
9.4 The rights and remedies of the Buyer under this agreement shall not be affected, and the Warranties and the Tax Warranties shall not be regarded as being qualified by any fact, matter or information within the actual, imputed or constructive knowledge of the Buyer or of any of its agents or advisers other than a fact, matter or information that is Disclosed.
9.5 Each of the Sellers hereby waives any right which it may have in respect Warranties and Tax Warranties is separate and independent and without prejudice to the other Warranties and Tax Warranties and, unless otherwise specifically provided, the meaning and extent of any misrepresentationWarranty or Tax Warranty, inaccuracy any part of it shall not be qualified or omission limited by reference to any other Warranty or Tax Warranty or any other provision in this agreement or from give cause for a claim under the Tax Covenant.
9.6 The Seller shall ensure that neither the Company nor any information or advice supplied or given by any director, officer or employee of the Company for Subsidiaries does anything during the purpose of assisting the Sellers to give Interim Period which would be materially inconsistent with any of the Warranties or the Tax Warranties, breach any Warranty or Tax Warranty or cause any Warranty or Tax Warranty to prepare be untrue or misleading.
9.7 The Seller shall promptly notify the Disclosure LetterBuyer in writing of anything which becomes known to it prior to Completion which causes a Warranty or Tax Warranty (as given on the date of this agreement or if repeated on Completion with reference to the facts and circumstances then existing) to become inaccurate or misleading.
9.8 The Warranties and Tax Warranties are deemed to be repeated on Completion with reference to the facts and circumstances then applying. Any reference made to the date of this agreement (whether express or implied) in relation to any Warranty or Tax Warranty shall be construed, in connection with the repetition of the Warranties and the Tax Warranties, as a reference to the date of such repetition.
Appears in 2 contracts
Sources: Share Purchase Agreement (Griffin-American Healthcare REIT II, Inc.), Share Purchase Agreement (Griffin-American Healthcare REIT II, Inc.)
Warranties. 8.1 The Sellers represent Recipient warrants, undertakes and warrant jointly agrees that: it has all necessary resources, approvals, powers and severally expertise to deliver the Project (assuming due receipt of the Grant); it will perform its obligations under this Agreement and deliver the Project in accordance with best industry practice and shall comply with all applicable laws and regulations; it has and shall keep in place adequate procedures for dealing with any conflicts of interest; all financial and other information concerning the Recipient which has been disclosed to NCFE is to the Buyer best of the Recipient's knowledge and belief, true and accurate; all information provided to the Recipient during the application process is to the best of the Recipient's knowledge and belief, true and accurate; and it is not aware of anything in its own affairs, which it has not disclosed to NCFE which might reasonably have influenced the decision of NCFE to make the Grant on the terms set out contained in Schedule 5 this Agreement; it is the sole legal and each party acknowledges that beneficial owner of, and owns all the terms of Schedule 5 rights and this clause 8 are in interests in, the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf Recipient's Background Intellectual Property Rights; NCFE's use of the Buyer shall modify or discharge Recipient's Background Intellectual Property Rights will not infringe a third party's intellectual property rights (provided that NCFE uses the Sellers’ liability under the Warranties Recipient's Background Intellectual Property Rights in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes accordance with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If ); exploitation of the Foreground Intellectual Property Rights by NCFE (and any of its successors or assignees) will not infringe the Warranties shall prove rights of any third party; and the Foreground Intellectual Property Rights, and any materials embodying those, are the Recipient's original work and have not been copied wholly or substantially from any other source. In the event of any complaint or dispute (which does not relate to NCFE's right to withhold Grant funds or terminate) arising between the Parties in relation to this Agreement the matter should first be untrue referred for resolution to the [INSERT ROLE] or misleadingany other individual nominated by NCFE from time to time. Should the complaint or dispute remain unresolved within 14 days of the matter first being referred to the [INSERT ROLE] or other nominated individual, as the case may be, either Party may refer the matter to the [INSERT ROLE] of NCFE and the [INSERT ROLE] of the Recipient with an instruction to attempt to resolve the dispute by agreement within 28 days, or such other period as may be mutually agreed by the Parties. In the absence of agreement under clause 18.2, the Sellers shall, without prejudice Parties may seek to any other right or remedy which may be available to resolve the Buyer, pay to matter through mediation under the Buyer CEDR Model Mediation Procedure (or to such other appropriate dispute resolution model as is agreed by both Parties). Unless otherwise agreed, the relevant member of Parties shall bear the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingmediation equally.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 2 contracts
Sources: Grant Agreement, Grant Agreement
Warranties. 8.1 9.1 The Sellers represent and warrant jointly and severally warrant to the Buyer in the terms of the Warranties on the date of this agreement, immediately prior to Completion, save for Warranties set out in Schedule 5 paragraph 1.1, 1.2 and each party acknowledges that the terms 2.1 of Schedule 5 and this clause 8 4, which are given by each Seller severally in the circumstances fair and reasonablerespect of themselves only.
8.2 9.2 The Warranties are given subject to matters fully, fairly qualified by the facts and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope circumstances Disclosed in the Disclosure Letter Letter.
9.3 Subject to clause 9.2:
9.3.1 no knowledge relating to the Company or the Sale Shares (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation imputed) shall prevent or enquiry limit a claim made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions for breach of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Dateclause 9.1; and
9.3.2 the Sellers may not invoke the Buyer’s knowledge (bactual, constructive or imputed) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, of a fact or might give rise, circumstance as a defence to a claim under the Warranties or which would materially affect the willingness for breach of a prudent purchaser for value to purchase the Shares on the terms of this Agreementclause 9.1.
8.6 If any of the Warranties shall prove to be untrue or misleading, the 9.4 The Sellers shall, without prejudice to any other right or remedy which waive and may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any enforce a right which it they may have in respect of any a misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company or any of its officers or Employees for the purpose of assisting the Sellers to give any of the Warranties a Warranty or to prepare the Disclosure Letter.
9.5 Each Warranty is to be construed independently and (except where this agreement provides otherwise) is not limited by the terms of any other Warranty or any other provision of this agreement.
9.6 Unless otherwise specified, where any Warranty refers to the knowledge, information, belief or awareness of the Sellers (or a similar expression) the Sellers shall be deemed to have such knowledge, information, belief or awareness as the Sellers would have obtained had the Sellers made due and careful enquiries into the subject matter of that Warranty (including enquiries of the directors relevant senior management of the Company with knowledge of the subject matter in question).
9.7 Any payment made by the Sellers in accordance with this clause 9 shall be made in full without any deduction or withholding by way of set off, counterclaim or otherwise.
9.8 Notwithstanding any other provision of this agreement, the liability of the Sellers in respect of a Claim and, where specified, a Tax Warranty Claim or Tax Covenant Claim shall be limited in accordance with Schedule 5 and Schedule 6.
Appears in 1 contract
Sources: Share Purchase Agreement
Warranties. 8.1 10.1 The Sellers represent and warrant jointly and severally Seller warrants to the Buyer in the terms set out in Schedule 5 2 and each party acknowledges that the terms of Schedule 5 and Buyer is entering into this clause 8 are Agreement in reliance on the circumstances fair and reasonableWarranties.
8.2 10.2 The Warranties are given subject only to matters fully, fairly and accurately disclosed in the Disclosure Letter and for this purpose fairly disclosed means disclosed in a manner and with sufficient detail to enable a reasonable buyer to make a reasonably informed assessment of the Buyer matter concerned.
10.3 Where any Warranty is qualified by “to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information best of which the Buyer has actual, constructive or imputed Seller’s knowledge and no investigation belief” or “so far as the Seller is aware” or other similar qualification, such warranty will be deemed to include additional statements that it has been made after reasonable enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) P▇▇▇ ▇▇▇▇▇▇, S▇▇▇▇ ▇▇▇▇▇▇, R▇▇▇▇▇ ▇▇▇▇ are hereby excludedand P▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Seller and the Seller will be deemed to have knowledge only of that information revealed by such enquiries.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 10.4 Each of the Warranties is a separate representation and independent of other Warranties.
10.5 The Parties agree that any claims under the Warranties will be limited in accordance with Schedule 3.
10.6 The Seller undertakes that pending Completion it will as soon as reasonably practicable notify the Buyer in writing of any fact, matter or warranty circumstance arising after today’s date of which it becomes aware (such awareness being deemed to be the actual knowledge of P▇▇▇ ▇▇▇▇▇▇, S▇▇▇▇ ▇▇▇▇▇▇, R▇▇▇▇▇ ▇▇▇▇ and shall not be restricted in its extent or application by the terms of P▇▇▇▇ ▇▇▇▇▇▇▇▇) which causes any of the other Warranties Warranties, whether given at today’s date or if they were to be repeated immediately before Completion, to be breached (“Post Exchange Breach”);
11.1 If, on or before Completion the Seller notifies the Buyer that there has been a material breach (as defined in clause 11.4) the Buyer may within 15 Business Days (or longer if extended pursuant to clause 11.5) of receipt of such notice, either:
11.1.1 elect to waive such material breach and proceed to Completion. If the Completion Date has already passed when the Buyer so elects it shall be deemed to be 5 Business Days after the date on which such election is made; or
11.1.2 elect to terminate this Agreement (save for clause 5.6, clause 6 (in relation to to whom the Deposit belongs) and clause 23 which shall remain in force) by serving written notice on the Seller and following such termination the Agreement shall become null and void and no Party shall be entitled to make a claim against any other term party in connection with this Agreement save for any claim which arises in respect of clause 5.6, clause 6 (in relation to to whom the Deposit belongs) and clause 23.
11.2 If the Buyer proceeds to Completion having received notice of a material breach (as defined in clause 11.4) it shall be deemed to have irrevocably waived any claim it may have against the Seller in respect of the facts matters and circumstances giving rise to such material breach and the circumstances or consequences which flow from them. If the Buyer terminates this Agreement having received notice of a material breach (as defined in clause 11.4) it shall have no further claim whatsoever against the Seller or Chemring pursuant to this Agreement.
8.5 Each of 11.3 If, on or before Completion the Sellers undertakes with Seller notifies the Buyer that -
(a) each there has been a Post Exchange Breach which has arisen as a result of an act or omission of the Warranties shall remain true Seller after today’s date and accurate on each day up to and including the Completion Date such breach is not a material breach (as if any express or implied reference defined in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(bclause 11.4) it shall immediately disclose to the Buyer in writing any matter which becomes known shall be entitled to it before Completion and which gives rise, or might give rise, to a bring claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee such breach provided that for all purposes such claim shall be deemed to be claim for breach of the Company Warranties. The Buyer shall have no other remedy against the Seller whatsoever in respect of such breach.
11.4 For the purposes of this clause 11 a “material breach” shall mean any Post Exchange Breach in respect of which the quantum of damages is agreed or determined to be in excess of £300,000. If there is a dispute as to whether the relevant Post Completion Breach amounts to a material breach, the Buyer and the Seller shall acting reasonably attempt to agree the level of such quantum. If they have not agreed it within 7 Business Days, either of them may refer the matter for determination by an independent chartered accountant or other suitable expert (the “Expert”) agreed on by them (or appointed by the President for the purpose of assisting the Sellers to give any time being of the Warranties or to prepare Institute of Chartered Accountants of England and Wales on the Disclosure Letterrequest of either of them). The Expert shall act as an expert (not an arbitrator) and his determination shall (in the absence of manifest error) be conclusive. The Expert’s fees shall be paid as he determines equitable.
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Applied Digital Solutions Inc)
Warranties. 8.1 The Sellers represent 7.1 Suffolk Libraries enters into this Agreement on the basis of and warrant jointly and severally to reliance on the Buyer in the terms Warranties set out in this Agreement and Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable14.
8.2 7.2 The Warranties are given subject Authority warrants and represents to matters fullySuffolk Libraries that each Warranty is true, fairly accurate and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludednot misleading.
8.3 In so far as 7.3 Without prejudice to the Warranties relate rights of Suffolk Libraries to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation claim on any other basis or warranty and shall not be restricted in its extent or application by the terms take advantage of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up remedies available to and including the Completion Date as it, if any express Warranty is breached or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove proves to be untrue or misleading, the Sellers shall, without prejudice Authority undertakes to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) Suffolk Libraries on demand -demand:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group Suffolk Libraries into the position it would have been in if the Warranty not been breached and had such Warranty been true and not misleading; together with the amount of and
(b) all costs and expenses (including including, in particular, damages, legal and other professional fees and expenses, the costs of management time and all other consequential losses losses) incurred by Suffolk Libraries (whether directly or indirectly arisingindirectly) incurred directly or indirectly by the Buyer (or any member in its provision of the Buyer’s Group) Library Services as a result of the breach or of the Company which it would Warranty not have incurred had such Warranty been being true and not misleadingor being misleading (including a reasonable amount in respect of management time).
8.7 Each 7.4 If at any time before or after the Commencement Date the Authority becomes aware that a Warranty has been breached, is untrue or is misleading, or has a reasonable expectation that any of those things might occur, it shall immediately:
(a) notify Suffolk Libraries in sufficient detail to enable Suffolk Libraries to make an accurate assessment of the Sellers hereby waives situation; and
(b) if requested by Suffolk Libraries, use its best endeavours to prevent or remedy the notified occurrence.
7.5 If at any right which time before or after the Commencement Date it becomes apparent that a Warranty has been breached, is untrue or misleading, or that the Authority has breached any other term of this Agreement that, in either case, is material to the provision of the Library Services, any of the Libraries, any of the Assets and/or the Authority Assets, Suffolk Libraries may (without prejudice to any other rights it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or relation to the breach) rescind this Agreement by notice to the Authority.
7.6 Warranties given by any director, officer or employee so far as the Authority is aware are deemed to be given to the best of the Company for knowledge, information and belief of the purpose of assisting the Sellers to give any Authority after it has made all reasonable and due and careful enquiries.
7.7 Each of the Warranties is separate and, unless expressly provided to the contrary, is not limited by reference to any other Warranty or anything in this Agreement.
7.8 No information of which Suffolk Libraries and/or its agents and/or advisers has knowledge (actual, constructive or imputed), or which could have been discovered (whether by investigation made by Suffolk Libraries or made on its behalf), shall prejudice or prevent any claim or reduce any amount recoverable by Suffolk Libraries under and/or pursuant to prepare this clause 7 or otherwise.
7.9 Without prejudice to clauses 7.1 to 7.8 (inclusive) and Schedule 14, the Disclosure LetterAuthority represents and warrants that all information provided to Suffolk Libraries in connection with the Library Services is accurate and not misleading in any respect.
7.10 Nothing in this clause 7 shall limit or exclude the liability of the Authority for fraud or fraudulent misrepresentation.
Appears in 1 contract
Sources: Library Services Contract
Warranties. 8.1 The Sellers Notwithstanding the provisions of Clauses 8 and 9, the Warranties and Indemnities are given by Seller and Warrantor severally and jointly. Purchaser shall, however, first bring and pursue any claim hereunder to Warrantor and only if Warrantor does not pay such claim to Purchaser subject to and in accordance with the terms and conditions of this Agreement, Purchaser shall be entitled to bring and pursue a claim against Seller. Purchaser agrees that Warrantor shall at all times be entitled to sell or liquidate Seller and that it shall not file any objections thereto as meant in Section 2:23 b paragraph 5 of the Dutch Civil Code.
8.2 Seller and Warrantor hereby represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges Purchaser that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true be true, accurate and accurate on each day up to and including the Completion Date not misleading as if any express or implied reference in Schedule 5 to of the date of this Agreement were a reference to and as of the Completion Date; and
(b) it shall immediately disclose , except, however, to the Buyer extent that the Warranties are qualified by matters disclosed, and accepted as such by Purchaser, in writing the Disclosure Letter.
8.3 Seller and Warrantor shall, subject to the provisions of this Clause 8, be liable to Purchaser for any matter which becomes known and all damages (VERMOGENSSCHADE within the meaning of Section 6:96 of the Dutch Civil Code (BURGERLIJK WETBOEK)) resulting from any and all breaches of any one or more of the Warranties. Warrantor shall, subject to it before Completion the provisions of this Clause 8, take all such action and which gives rise, make all such payments to Purchaser or might give riseat Purchaser's request, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove Companies, as may be required for Purchaser to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into brought in the position it would have been in had if such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it breach would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentationoccurred, inaccuracy or omission in or from any information or advice supplied or given by any directoralways provided, officer or employee of the Company for the purpose of assisting the Sellers however that if Purchaser requests amounts to give be paid to any of the Warranties Companies, such amounts shall never exceed the amounts that would be payable by Seller or Warrantor to prepare Purchaser. Any such payment shall be deemed to be a reduction of the Disclosure LetterPurchase Price.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and 4.1 Each of the Managers hereby severally (but not jointly) warrants to each of the Original Investors that (subject to the Buyer matters fairly disclosed in the terms Disclosure Letter and to any matter expressly provided for under this Agreement) each of the statements set out in Schedule 5 3 (the “Warranties”) is true and each party acknowledges accurate in all respects at the date of this Agreement (save that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇▇ ▇▇▇▇▇▇▇▇ are hereby excluded.
8.3 In so far as does not warrant the statements set out in paragraph 3 of Schedule 3). The Warranties relate to matters contained in paragraphs 1 and 2 of factSchedule 3 but, they shall constitute representations in reliance upon which for the Buyer has entered into this Agreement.
8.4 Each avoidance of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any doubt, none of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate be deemed to be repeated on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to Date.
4.2 The Managers acknowledge that the date of Original Investors are entering into this Agreement were a reference to in reliance on each of the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementWarranties.
8.6 If any 4.3 Each of the Warranties shall prove to be untrue or misleading, are separate and independent warranties and the Sellers Original Investors shall, without prejudice subject to any other clause 4.8, have a separate claim and right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value action in respect of the Shares is less than it would have been had such Warranty been true every breach. The Warranties shall continue in full force and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingeffect after Completion.
8.7 4.4 Each of the Sellers Managers hereby waives agrees with the Original Investors and the Company to waive any right which it he may have in respect of any misrepresentationmisrepresentation or inaccuracy in, inaccuracy or omission in or from from, any information or advice supplied or given to him by any directorother Manager, officer or employee any member of the Company Target Group or any of the Target Group’s officers or employees for the purpose of assisting the Sellers enabling him to give any of the Warranties or to prepare the Disclosure LetterLetter save for fraud on the part of the relevant person.
4.5 Each of the Warranties is given subject to the matters fairly disclosed in the Disclosure Letter and to any matter expressly provided for under this Agreement but is otherwise subject to no qualification.
4.6 Where any of the Warranties or the statements in the Disclosure Letter is qualified by the expression “to the best of the knowledge, information and belief of” or “as far as the Manager is aware” or any similar expression, it shall be deemed to include and be limited to any knowledge or awareness which the person would have if the person had made all reasonable enquiries of the other Managers and such other persons that have been agreed in writing between each Manager and the Original Investors.
4.7 Each Manager gives those Warranties which he gives pursuant to clause 4.1 in respect of himself only and not in respect of any other Manager.
4.8 Save for claims in respect of any breach of any of the Warranties arising (or any delay in the discovery of which arises) as a result of fraud or dishonest concealment on the part of the relevant Manager:
4.8.1 the aggregate liability of each Manager for all claims pursuant to the Warranties shall not exceed the amount set opposite his name in column 4 of Schedule 1;
4.8.2 no liability of a Manager in respect of any claim for breach of any of the Warranties given by such Manager shall arise unless the amount of such claim exceeds £100,000;
4.8.3 no liability of a Manager in respect of a claim for breach of any of the Warranties given by such Manager shall arise unless the amount of such claim when aggregated with the amounts recoverable in respect of other claims for breach of any of the Warranties given by such Manager exceeds £1,000,000, but then the liability shall be in respect of the whole amount of such claim subject to clause 4.8.1 and not just the excess over £1,000,000;
4.8.4 no Manager shall be liable in respect of any claim for breach of any of the Warranties given by such Manager unless he shall have been given written notice of such claim prior to the date being three months after the date on which the Enlarged Group’s accounts for the financial year to 31 December 2004 are approved by the Board;
4.8.5 the Original Investors shall not be entitled to recover more than once from each Manager in respect of any one matter giving rise to a claim under the Warranties;
4.8.6 the Managers shall not be liable for any claim for breach of any of the Warranties given by the Managers to the extent that it arises, or is increased or extended by:
(a) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on/or after Completion with retrospective effect;
(b) any change in the accounting reference date of any Group Company made on/or after Completion; or
(c) any change in the accounting policy or practice of any Group Company made on/or after Completion, save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice;
4.8.7 the Managers shall not be liable for any claim for breach of the Warranties given by the Managers to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied in full by or at the expense of the Managers within 15 days of the date on which written notice of such claim is given to the Managers; and
4.8.8 the liability of each Manager for each individual claim for breach of the Warranties given by the Managers shall be limited to the percentage of the total amount of that claim set out opposite his name in column (5) of Schedule 1.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and severally to Borrower warrants the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -following:
(a) each except as provided in the Business Loan Agreement, it has or will acquire free and clear title to all of the Warranties Collateral and the security interest granted to Lender shall remain true be a first security interest, and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 Borrower will defend same to the date Lender against the claims and demands of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; orall persons;
(b) the amount necessary to put the Company and any member Borrower will fully cooperate in placing or maintaining Lender's lien or security interest;
(c) all of the Buyer’s Group into collateral is located in the position states of Michigan or Massachusetts;
(d) all accounts are genuine and collectible except to the extent of reserves provided on the balance sheet;
(e) the Borrower will not remove or change the location of any Collateral without the Lender's prior written consent;
(f) the Borrower will not use the Collateral or permit it would have been to be used for any unlawful purpose;
(g) the Borrower will not conduct business under any name other than that stated herein, nor change, nor reorganize the type of business entity as described, except upon the prior written approval of the Lender, in had which event the Borrower agrees to execute any documentation of whatsoever character or nature demanded by the Lender for filing or recording, at the Borrower's expense, before such Warranty been true and not misleading; together with change occurs;
(h) the amount Borrower will keep all records of all costs and expenses (including legal and other professional fees and expensesaccount, the costs documents, evidence of management time title, and all other consequential losses whether directly documentation regarding its business and the Collateral at the address specified herein, unless notice thereof is given to the Lender at least ten (10) days prior to the change of any address for the keeping of such records; the Borrower will, at all times, maintain the Collateral in good condition and repair, ordinary wear and tear excepted, and will not sell or indirectly arisingremove same except as to inventory in the ordinary course of business;
(i) incurred directly or indirectly the Borrower is a legally created business entity, as described before, and it has the power, and the person signing is duly authorized, to enter into this Agreement; the execution of this Agreement will not create any breach of any provision of any other agreement to which Borrower is a party; and
(j) all Financial Statements delivered by the Buyer Borrower to the Lender to obtain loans and extensions of credit taken as a whole (or any member A) fairly present in all material respects (subject, in the case of the Buyer’s Groupinterim financial statements, to normal, recurring year-end adjustments which are not material individually or in the aggregate) the financial position of the Borrower as of the dates indicated and the results of operations of the Borrower for the periods indicated, (B) (x) have been prepared in accordance with Generally Accepted Accounting Principles ("GAAP") consistently applied throughout the periods covered thereby (subject, in the case of the interim financial statements, to normal, recurring year-end adjustments which are not material individually or in the aggregate) or (y) to the Company extent not prepared in accordance with GAAP, then footnotes to the Financial Statements will be provided describing in reasonable detail the differences, if any, between the accounting principles pursuant to which it would not have incurred had such Warranty been true Financial Statements were in fact prepared and not misleading.
8.7 Each GAAP and (C) are in accordance with the books and records of the Sellers hereby waives any right Borrower which it may have been maintained in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Lettera manner consistent with historical practice.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant 7.1 Except as specifically disclosed to the Purchaser in the Disclosure Letter, the Warrantors jointly and severally represent to the Buyer Purchaser in terms of the Company Warranties is true, correct and accurate as of the Execution Date and will be true, complete, accurate and not misleading on the First Tranche Completion Date and the Second Tranche Completion Date.
7.2 Each Seller, on behalf of itself, hereby represents and warrants that each of the Seller Warranties is true, correct and accurate as of the Execution Date and will be true, complete, accurate and not misleading at Completion.
7.3 The Purchaser warrants to the Sellers in the terms set out in Schedule 5 of the Purchaser's Warranties that each of the Purchaser’s Warranties is true, correct and each party acknowledges that accurate as of the terms of Schedule 5 Execution Date and this clause 8 are in the circumstances fair will be true, complete, accurate and reasonablenot misleading at Completion.
8.2 7.4 The Warranties are given subject Sellers acknowledge that, in entering into this Agreement, the Purchaser has relied upon the Warranties. Subject to matters fullyclause 7.6 below, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in Sellers shall not invoke the Disclosure Letter Purchaser’s knowledge (‘Disclosed’) but no other information of which the Buyer has whether actual, constructive or imputed knowledge and no investigation imputed) of any matter or enquiry thing as a defence to an indemnity claim, or a claim for damages, made by the Purchaser in respect of the Warranties. Subject to clause 7.6, the Purchaser will have the right to make a claim for breach of any Warranties whether or not it has, prior to date hereof, has or could have discovered (whether by any investigation made by it or on behalf its behalf, into the affairs of the Buyer Company) that any Warranty is untrue, inaccurate or misleading.
7.5 The Warrantors shall modify or discharge be entitled to update the Sellers’ liability under Disclosure Letter, 2 (two) days prior to the Warranties in First Tranche Completion Date, for any way event occurring between the Execution Date and the provisions of section 6(2) date of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as Updated Disclosure Letter, provided any such updated disclosures must be agreeable to the Warranties Purchaser and shall not relate to matters Fundamental Warranties. If any such disclosures are not acceptable to the Purchaser, the Parties shall mutually discuss and agree on the mechanism to deal with such additional disclosures. If the Parties are unable to determine the manner in which such additional disclosures are to be dealt with within a period of fact5 (five) Business Days from the delivery of the additional disclosures (or such extended period as may be agreed between the Parties), they shall constitute representations in reliance upon which then either Party may terminate the Buyer has entered into this Agreement.
8.4 Each of 7.6 The Warrantors shall be entitled to update the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by Disclosure Letter, 2 (two) days prior to the terms of Second Tranche Completion Date, for any of event occurring between the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the First Tranche Completion Date as if any express or implied reference in Schedule 5 to and the date of this Agreement were a reference such Updated Disclosure Letter. Provided however, the Warrantors would not be required to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter in the Updated Disclosure Letter which becomes known to it before Completion and which gives rise, are already in the knowledge of the Purchaser and/ or might give rise, the Purchaser’s Directors due to a claim under discussion at the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any meeting of the Warranties Board or the Shareholders, and such matters shall prove be deemed to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company disclosed for the purpose of assisting the Sellers to give any of the Warranties or to prepare the such Updated Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 11.1 The Sellers represent Company, the Warranting Directors and warrant NMLS hereby jointly and severally warrant to the Buyer ZAI in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way each case as at the date of this Agreement and at all times during the provisions of section 6(2) of period up to and including Admission so that the Law of Property (Miscellaneous Provisions) Warranties shall be deemed to be repeated by reference to the facts and circumstances from time to time subsisting during that period.
11.2 ▇▇▇▇ ▇▇▇▇▇▇▇▇ are hereby excludedseverally warrants to ZAI in the terms of the Warranties contained in paragraphs 1.6 and 2 of Schedule 4 in relation to himself only as at the date of this Agreement and at all times during the period up to and including Admission so that such Warranties shall be deemed to be repeated by reference to the facts and circumstances from time to time subsisting during that period.
8.3 In so far 11.3 The Warranties shall remain in full force and effect notwithstanding Offer Admission.
11.4 The Company, the Warranting Directors and NMLS accept that ZAI is assuming its obligations as Nominated Adviser and Broker to the Warranties relate to matters of fact, they shall constitute representations Company and its obligations contained in this Agreement in reliance upon each of the Warranties.
11.5 Each of the Warrantors hereby severally undertakes to ZAI:
(a) that it/he shall not knowingly do, allow or procure any act or omission before Admission which would constitute a breach of any of the Buyer Warranties or would make any of them untrue or inaccurate or misleading if repeated by reference to the facts and circumstances in existence at any time prior to Admission; and
(b) to notify ZAI forthwith if it comes to its or his knowledge at any time prior to Admission that any of the Warranties is or may be untrue or inaccurate or misleading when made and/or that any of the Warranties has entered into ceased or may have ceased to be true or accurate or has become or may have become misleading by reference to the facts and circumstances from time to time subsisting during that period prior to Admission.
11.6 Without prejudice to the Warranties contained in Schedule 4, each Director severally warrants ZAI that all information in respect of himself (including, without limitation, any information relating to his past employment and past or present activities or business interests) with which ▇▇▇ has been furnished by him (or on his behalf) in writing (including, without limitation, the contents of his director's questionnaire) given in connection with Admission and which is set out or referred to in the Admission Document is true and accurate and is not misleading and does not omit anything likely to affect the import of such information.
11.7 The Warranties (other than those in paragraphs 1.1 to 1.5 inclusive, 2.1 to 2.5, 6 and 9 of Schedule 4) are given subject to any matter disclosed in the Admission Document. Where any Warranty is qualified by the phrases "in all material respects" or "materially" or any similar phrase, materiality shall be assessed by reference to the general duty of disclosure for the Admission Document as set out in paragraph (k) of schedule two to the AIM Rules.
11.8 If, at any time up to Admission, ZAI shall receive notification pursuant to Clause 11.5(b) or otherwise become aware that any of the Warranties is or has become or is likely to become untrue, inaccurate or misleading (or would be untrue, inaccurate or misleading if then repeated), ZAI may (without prejudice to its rights to terminate its obligations under this Agreement pursuant to Clause 13) acting reasonably require the Company at its own expense to make or cause to be made such announcements and/or despatch such communications (including without limitation a Supplementary Admission Document) as ZAI shall determine.
11.9 Each of the Directors hereby severally waives all and any rights which he may have or claim to have against the Company (including without limitation any rights of contribution) arising out of or in connection with any breach of warranty, representation, undertaking, indemnity or obligation under or pursuant to this Agreement.
8.4 Each 11.10 Any release, waiver or compromise or any other arrangement of any kind whatsoever which ▇▇▇ may agree to or effect as regards one or more of the Warranties is a separate representation Company or warranty and the Warrantors shall not affect the right of ZAI as regards any other person liable hereunder.
11.11 Notwithstanding anything herein contained, save in the event of fraud or wilful non-disclosure, ZAI shall not be restricted entitled to make any claim under the Warranties against the Warrantors unless it shall have given written notice thereof to the Warrantors specifying in its extent reasonable detail the basis of such claim and the amount thereof on or application before the date falling three months after the publication of the audited consolidated accounts to 30 April 2007. Any such claim shall (if has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn on the date that is twelve months from the date of receipt by the terms of any relevant Warrantor of the other Warranties or notice of claim (and such Warrantor shall have no further liability in respect of it) unless proceedings in respect of it have commenced prior to such date by both being issued and served on the relevant Warrantor.
11.12 Without prejudice to their joint and several liability (unless otherwise stated) up to any such individual aggregate amount, the aggregate liability under Clause 11.1 and/or 11.2 and any other term provision of this Agreement.
8.5 Each Agreement of the Sellers undertakes with the Buyer that -:
(a) each of the Warranties Directors shall remain true and accurate on each day up to and including not exceed the Completion Date as if any express or implied reference amount set out opposite his/her name in Schedule 5 to the date of this Agreement were a reference to the Completion Date1; and
(b) it each of the Company and NMLS (save in respect of Clause 13 (Indemnities)) shall immediately disclose not exceed the aggregate value of the Placing Shares (excluding the ▇▇▇▇▇▇▇ Shares) at the Issue Price save in the case of claims which are the consequence of fraud or wilful concealment by any such Warrantor, in which case there shall be no maximum in relation to that Warrantor.
11.13 ZAI shall, to the Buyer extent that it suffers any loss in writing respect thereof, be entitled to the same remedies and rights of action against the Warrantors as any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the person acquiring any Placing Shares on the terms basis of the Admission Document and the Warranties shall be in addition to and shall not be construed as limiting or prejudicing those or any other rights or remedies available to ZAI provided that ZAI shall not be entitled to recover under any provision of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shalldamages, without prejudice to any other right or remedy which may be available to the Buyerreimbursement, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensescompensation, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have restitution and/or indemnity payments in respect of any misrepresentation, inaccuracy loss or omission liability more than once in or from any information or advice supplied or given by any director, officer or employee respect of the Company for same loss or liability.
11.14 If any Warranty claim arises because of a liability which in any such case is contingent when that claim is notified, a Warrantor will not be obliged to make any payment thereunder until such time as the purpose of assisting contingent liability ceases to be contingent and becomes an actual liability and the Sellers period within which any claim must be commenced pursuant to give any of the Warranties or to prepare the Disclosure LetterClause 11.2 shall be extended accordingly.
Appears in 1 contract
Warranties. 8.1 12.1 The Sellers represent and warrant Warrantors jointly and severally warrant to the Buyer in the terms set out in Schedule 5 CRT and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ Peel ▇▇▇▇ are hereby excluded.
8.3 In so far as that each Warranty is true, accurate and not misleading at the Warranties relate to matters date of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each , save that the Directors severally warrant to CRT and Peel ▇▇▇▇ in respect of clause 12.3, and Warranties 16, 18 and 19 of Schedule 2 as at the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term date of this Agreement.
8.5 Each 12.2 The Warrantors severally agree not to cause, and severally to use all reasonable endeavours not to permit, any event to occur or allow any omission which would render any of the Sellers Warranties untrue, inaccurate or misleading if it were to be repeated immediately prior to Admission by reference to the facts and circumstances then subsisting.
12.3 Each Director further severally warrants to CRT and Peel ▇▇▇▇ that the responses given by him to the directors' questionnaire and the information set out in the Admission Document relating to him and his connected persons are true and accurate and each is not by itself or by omission misleading and that all information relating to himself which would reasonably be considered material for disclosure in the Admission Document has been disclosed to CRT and Peel ▇▇▇▇.
12.4 Without prejudice to the provisions of clause 18.4 each of the Warrantors undertakes with the Buyer that -to notify CRT and Peel ▇▇▇▇ in writing, immediately upon him or it becoming aware of any fact or circumstance, which would or is likely to indicate at any time up to Admission:
(a) each that any of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express was untrue, inaccurate or implied reference in Schedule 5 to misleading at the date of this Agreement Agreement;
(b) that any of the Warranties would be untrue, inaccurate or misleading if it were a to be repeated immediately prior to Admission by reference to the Completion Datefacts and circumstances at that time subsisting; or
(c) any other facts or circumstances which occur or arise at any time prior to Admission which is or may constitute a significant change or new matter for the purposes of the AIM Rules.
12.5 Where any statement in the Warranties is qualified by the expression "to the best of the knowledge, information and belief of the Warrantors" or "so far as the Warrantors are aware" or any similar expression, each Warrantor shall be deemed to have knowledge of:
(a) other than in respect of the Warranty given at clause 12.3 and Warranties 18 and 19 of Schedule 2, anything of which the other Warrantors have knowledge or are deemed by paragraphs (b) or (c) below to have knowledge;
(b) anything of which he ought reasonably to have knowledge given his particular position in and responsibilities to the Company; and
(bc) it anything of which he would have had knowledge had he made due and careful enquiry before giving the Warranties.
12.6 The Warranties shall immediately disclose continue in full force and effect notwithstanding the completion of all matters and arrangements referred to in or contemplated by this Agreement.
12.7 The Warranties shall be qualified to the Buyer extent of any facts or information fairly disclosed in writing any matter which becomes known to it before Completion and which gives risethe Admission Document, or might give rise, otherwise fairly disclosed pursuant to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any 12.8 The Warrantors acknowledge that CRT and Peel ▇▇▇▇ are entering into this Agreement in reliance upon each of the Warranties which has also been given with the intention of inducing CRT and Peel ▇▇▇▇ to enter into this Agreement.
12.9 Each of the Warranties shall prove be construed separately and shall not be limited or restricted by reference to be untrue or misleading, inference from the Sellers shall, without prejudice to terms of any other right of them or remedy which may any term of this Agreement (other than clauses 12.7 and 12.10).
12.10 The liability of the Warrantors shall be available limited as set out in Schedule 4.
12.11 References in this Agreement to the Buyer, pay to the Buyer a warranty or undertaking being (or to the relevant member of the Buyer’s Groupnot being) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly accurate or indirectly arising) incurred directly or indirectly by the Buyer being (or any member of not being) misleading shall mean material in the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee context of the Company for or the purpose Placing.
12.12 To the extent that a Supplementary Admission Document is published after the date of assisting this Agreement in accordance with clauses 18.4 and 18.5, all references to the Sellers Admission Document in this clause 12 and Schedule 2 shall be taken to give include any of such Supplementary Admission Document and the Warranties or shall be deemed to prepare be qualified by any statement made therein with effect from the Disclosure Letterdate of publication of such Supplementary Admission Document.
Appears in 1 contract
Sources: Placing Agreement (FutureFuel Corp.)
Warranties. 8.1 6.1 The Sellers represent Seller undertakes, represents and warrant jointly and severally warrants to the Buyer Purchaser (for itself and for the benefit of its successors), that each of the statements in the terms set out Seller's Warranties is now and will at Completion and at all times before Completion be true and accurate and not misleading.
6.2 The Purchaser undertakes, represents and warrants to the Seller (for itself and for the benefit of its successors) that each of the statements in Schedule 5 the Purchaser's Warranties is now and each party will at Completion and at all times before Completion be true and accurate and not misleading.
6.3 The Seller acknowledges that the terms Purchaser has entered into this Agreement on the basis of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which (among other things) the Buyer Seller's Warranties and has entered been induced by them to enter into this Agreement.
8.4 6.4 The Purchaser acknowledges that the Seller has entered into this Agreement on the basis of and in reliance upon (among other things) the Purchaser's Warranties and has been induced by them to enter into this Agreement.
6.5 Each of the Warranties is a shall be separate representation and independent. Save as expressly otherwise stated to the contrary, no provision in any Warranty shall govern or warranty and shall not be restricted in its limit the extent or application of any other provision in any Warranty and no Warranty shall be limited by reference to or inference from anything in the terms of other Transaction Document.
6.6 Subject to Clause 7, in the event that any of the other Seller's Warranties is breached or by any other term of this Agreement.
8.5 Each of (as the Sellers undertakes with the Buyer that -
(acase may be) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove proves to be untrue or misleading, the Sellers shall, without prejudice Purchaser and/or the Company shall have the right to claim damages or otherwise take any other right or remedy which may be available to actions against the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by Seller for any and all Losses which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put Purchaser and/or the Company and has incurred or sustained as a result thereof. For the avoidance of doubt, any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly claim made by the Buyer (or any member of the Buyer’s Group) or Purchaser and/or the Company which it would not have incurred had such Warranty been true and not misleading.under this Clause
8.7 Each of 6.7 In the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give event that any of the Purchaser's Warranties is breached or (as the case may be) proves to prepare be untrue or misleading, the Disclosure LetterSeller shall have the right to claim damages or otherwise take any actions against the Purchaser for any and all Losses which the Seller has incurred or sustained as a result thereof. For the avoidance of doubt, any claim made by the Seller under this Clause 6.67 shall not prejudice the Seller’s other rights under this Agreement.
6.8 The Seller shall promptly notify the Purchaser and the Company in writing immediately upon becoming aware of the same, of any matter, event or circumstance (including any omission to act) which may arise or become known to the Seller after the date of this Agreement and before Completion which constitutes a breach of, or is inconsistent with any of the Seller's Warranties. For the avoidance of doubt, such disclosure shall not prejudice any rights of the Purchaser (or the Company) nor exempt the Seller’s liability.
6.9 The Purchaser shall promptly notify the Seller in writing immediately upon becoming aware of the same, of any matter, event or circumstance (including any omission to act) which may arise or become known to the Purchaser after the date of this Agreement and before Completion which constitutes a breach of, or is inconsistent with any of the Purchaser's Warranties. For the avoidance of doubt, such disclosure shall not prejudice any rights of the Seller nor exempt the Purchaser’s liability.
6.10 Any qualification to any Warranties by reference to the knowledge of a Party shall mean the best of the knowledge (actual, implied and constructive), information or belief of that Party and that it has made all reasonable enquiries into the subject matter of that Warranty, and that it does not have the knowledge, information or belief that the subject matter of that Warranty may not be correct, complete or accurate.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Warranties. 8.1 The Sellers represent Seller warrants that:
5.3.1 it is and warrant jointly will be the true and severally lawful legal and registered owner and holder of the Sale Shares as at the Effective Date;
5.3.2 it is and will be entitled to the Buyer dispose of its legal and registered interest in the terms set out in Schedule 5 Sale Shares, and each party acknowledges that the terms of Schedule 5 and this clause 8 are beneficial interest in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or Sale Shares on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties Beneficiaries, in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes accordance with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.;
8.6 If 5.3.3 it is entitled and able to give free and unencumbered title in the Sale Shares to the Purchaser;
5.3.4 there are no amounts of any nature whatsoever owing by the Company to the Seller or the Beneficiaries from any cause whatsoever, including by way of loan account or otherwise, in contract or in delict, actual or contingent, and includes any interest accrued thereon;
5.3.5 the Company has all such licences as are prescribed by law for the conduct of its business in each jurisdiction in which it carries on business, and the Seller is not aware of any fact or circumstance which may result in the cancellation, withdrawal or non-renewal of any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -them. The Company's trading licence is annexed hereto as Annexure A;
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put 5.3.6 the Company has received such consents and approvals as are required under Lesotho laws to cultivate, manufacture, produce and export psilocybin as an API. Letters of permission issued by the Lesotho Ministry of Health as well as the Lesotho Narcotics Secretariat is annexed hereto as Annexure B;
5.3.7 the Company has complied with and is not in breach of any member of laws;
5.3.8 the Buyer’s Group into Company is the position it would have been in had such Warranty been true and not misleading; together with the amount sole beneficial owner of all costs and expenses (including legal and other professional fees and expenses, the costs assets of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly whatsoever nature used by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of its business. None of the assets of the Company is subject to any misrepresentationreservation of ownership, inaccuracy lease, lien, hypothec, mortgage, notarial bond, pledge or omission in or other encumbrance whatsoever;
5.3.9 all proper tax returns that may have become due by the Company from time to time under any information or advice supplied or given law administered by any directorthe relevant revenue authority have been duly made and all tax liabilities have been duly settled;
5.3.10 the most recent financial statements of the Company fairly present the financial position, officer or employee operations and results of the Company for the purpose of assisting the Sellers period to give which they relate in all material respect, and any liabilities of the Warranties Company incurred since that date have been in the ordinary normal and regular course of business;
5.3.11 the Company owns no immovable property;
5.3.12 the Company has no employees;
5.3.13 the Company is not party to any litigation; and
5.3.14 it has made a full and complete disclosure to the Purchaser of the affairs of the Company and all material information of whatsoever nature or kind has been disclosed to prepare the Disclosure LetterPurchaser which would have been material in the decision of the Purchaser to enter into this Agreement, either at all or on the terms and conditions set out herein.
Appears in 1 contract
Warranties. 8.1 10.1 The Sellers represent Seller acknowledges that the Buyer has been induced to enter into this Agreement and warrant jointly to purchase the Shares on the basis of and severally in reliance upon, among other things, the Warranties.
10.2 The Seller warrants to the Buyer that each and every Warranty is true, correct, accurate and not misleading at the date of this Agreement subject only to:
(a) the matters referred to in the terms set out in Schedule 5 and each party acknowledges Disclosure Documents, provided that:
(i) such matters will be treated as qualifying or limiting the application of any Warranty only to the extent that such disclosure is fair (fair for these purposes meaning that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in disclosure is sufficient detail to enable the Buyer to fully understand their the nature and scope of the matter disclosed); and
(ii) no qualification or limitation shall be possible or effective in relation to the Warranties contained in paragraphs 1 (Capacity and Authority) or 2 (the Shares) of Schedule 4; and
(b) any exceptions for which express provision is made pursuant to this Agreement.
10.3 Each of the Warranties shall be deemed to be repeated immediately prior to Completion by reference to the facts and circumstances then existing and on the basis that all references (whether express or implied) in such Warranties to the “date of this Agreement” or in any of the definitions in clause 1.1 used in such Warranties shall be deemed to be substituted with references to “Completion Date”.
10.4 The Seller shall between exchange of this Agreement and Completion forthwith notify the Buyer in writing of any matter or thing which may arise or become known to it after the date of this Agreement and prior to Completion which constitutes (or would with the passage of time constitute) a breach of any of the Warranties given at exchange under this Agreement.
10.5 The Seller shall deliver to the Buyer immediately prior to Completion the Supplementary Disclosure Letter confirming that the Warranties (as repeated on the basis set out in clause 10.3) remain true, correct, accurate and not misleading in all material respects immediately prior to Completion except as regards any matter or event occurring between the date of this Agreement and Completion fair and accurate details of which are set out in the Supplementary Disclosure Letter.
10.6 The Supplementary Disclosure Letter (‘Disclosed’) but no other information shall not affect the right of which the Buyer to place reliance on the Warranties and shall not affect the right of the Buyer to claim damages for breaches of Warranty disclosed by the Supplementary Disclosure Letter.
10.7 If at any time before or at Completion it becomes apparent that a Warranty has actualbeen breached, constructive is untrue or misleading, or that the Seller has breached any other terms of this Agreement that in either case is material to the sale of the Shares, the Buyer may (without prejudice to any other rights it may have in relation to the breach):
(a) to rescind this Agreement by notice to the Seller; or
(b) proceed to Completion. save that where such breach of Warranty arises as a result of an event or development which occurs between exchange of this Agreement and Completion, the Buyer shall not be entitled to rescind this Agreement.
10.8 Each Warranty is a separate and independent representation and warranty and, save as otherwise expressly provided, no Warranty shall be limited by reference to any other Warranty or by the other terms of this Agreement, the Disclosure Documents or the Tax Deed, except to the extent that disclosure made with respect to one warranty that shall reasonably be imputed knowledge to refer also to another warranty (other than the Warranties contained in paragraphs 1 (Capacity and no Authority) or 2 (the Shares) of Schedule 4) shall be so imputed (whether or not an express cross reference appears).
10.9 The liability of the Seller in respect of any claim under the Warranties shall be limited as provided in Schedule 5 except:
(a) in the case of a breach of the Warranties contained in paragraphs 1 (Capacity and Authority) and 2 (the Shares) of Schedule 4; or
(b) in relation to any claim which arises out of any fraud, dishonesty, wilful material misstatement or wilful material non-disclosure by or on behalf of the Seller.
10.10 The provisions of Schedule 5 which, among other things, regulate or otherwise affect the liability of the Seller shall remain in full force and be fully applicable in all circumstances and, in particular, notwithstanding any breach of the Warranties or any claim against the Seller in respect of the Warranties or the Tax Deed, whatever its nature or consequences.
10.11 The rights and remedies of the Buyer in respect of any breach of the Warranties shall not be affected by Completion (except as may be limited in time as provided in Schedule 5), by any investigation or enquiry made by or on behalf of the Buyer into the affairs of the Company, or by any other event or matter whatsoever which otherwise might have affected such rights and remedies except a specific and duly authorised written waiver or release. No information relating to the Company of which the Buyer has knowledge (actual, imputed or constructive) other than by reason of its being disclosed in accordance with clause 10.2(a)(i) shall modify prejudice any claim which the Buyer shall be entitled to bring or discharge shall operate to reduce any amount recoverable by the Sellers’ liability Buyer under this Agreement.
10.12 Any information supplied by the Company, its officers, employees or agents to the Seller, its agents, representatives or advisers in connection with, or to form the basis of, the Warranties or the Tax Deed or any matter covered in the Disclosure Documents, or for any way other reason, shall be deemed not to include or have included a representation, warranty or guarantee of its accuracy to the Seller and shall not constitute a defence to the provisions Seller to any claim made by the Buyer. The Seller hereby waives any and all claims against the Company, their officers or employees in respect of section 6(2any information so supplied (and undertakes that no other person claiming under or through it will make any such claim) save in relation to any claim against any officer or employee which arises out of any fraud, wilful misconduct or intentional dishonesty of such officer or employee.
10.13 Where any Warranty is qualified by the expression “so far as the Seller is aware” or “to the best of the Law knowledge, information and belief of Property the Seller” or words having similar effect, such Warranty shall be deemed to include a statement that such awareness means both the actual knowledge of the Seller and also such knowledge which the Seller would have had if it had made due and careful enquiry of all the following members of senior management of:
(Miscellaneous Provisionsi) S▇▇▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -▇▇▇;
(aii) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion DateJ▇▇▇▇▇ ▇▇▇▇▇;
(iii) B▇▇▇▇▇▇ ▇▇▇▇▇▇ Last;
(iv) S▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(bv) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementJ▇▇▇ ▇▇▇▇▇.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 10.14 Each of the Sellers hereby waives any right which it may have paragraphs in respect Schedule 4 shall be interpreted as being deemed to include all references to the foreign equivalent of any misrepresentationterms used, inaccuracy or omission statutes and regulations referred to and concepts applied where the Company is incorporated in, does business in or from is affected by the laws or regulations of a country outside England and Wales.
10.15 In determining damages for any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any breach of the Warranties or any other provision of this Agreement, the Buyer shall not be required to prepare cause the Disclosure LetterCompany to be wound up or to rely on the limited liability of any company in mitigation of its loss.
Appears in 1 contract
Warranties. 8.1 4.1 [Each Warrantor] [The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -Company]:
(a) warrants to the Investor that each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to Warranty is, at the date of this Agreement were a Agreement, and will, at Closing by reference to the Completion Datefacts and circumstances then existing, be true, accurate and not misleading, subject only to the matters Disclosed and any exceptions expressly provided in this Agreement, including those in Clause 5; and
(b) it acknowledges that the Investor has been induced to enter into this Agreement and to subscribe for the Subscription Shares in reliance upon the Warranties. se in this Agreement, no Warranty shall immediately disclose to the Buyer in writing be limited by any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms other Warrant rms of this Agreement.
8.6 If . y time prior to Closing a Warrantor becomes aware that a Warranty has ed, or will at Closing be breached, the Warrantor shall immediately notif ng of such matter, with sufficient detail to enable the Investor to be app nd circumstances and their financial and other impact on the Group or re ny. is a breach of Warranty prior to Closing or a Warranty would be breach Closing occur), the Investor may (without prejudice to its other rights a terminate this Agreement (in which case Clause 3.5 shall apply); or proceed with Closing. estor’s rights and remedies in respect of a breach of any of the Warranties Warrant Closing. ompany] [The Warrantors] shall prove not be liable for a Claim unless the Inve mpany] [the Warrantors] written notice of such Claim, specifying (in rea he nature of the Claim and (so far as can then be reasonably ascertaine , within the period of [twelve] months following the Closing Date. gregate liability of [the Company] [the Warrantors] for all and any Claim r shall not exceed [the Subscription Amount : in the case of the Company, an amount equal to be untrue or misleadingthe Subscription Amou in the case of each of the Warrantors other than the Company, the Sellers shall, without prejudice su £[AMOUNT]]. estor: shall not be entitled to recover any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentationClaim unl of such Claim exceeds £[AMOUNT], inaccuracy in which event the whole of such a recoverable and not merely the excess over £[AMOUNT]; and shall not be entitled to recover any amount in respect of any Claim unl of such Claim, when aggregated with the [Company’s] [Warrantors’] lia Claims, exceeds £[AMOUNT], in which event the whole of such amount recoverable and not merely the excess over £[AMOUNT]. ompany] [The Warrantors] shall not have any liability in respect of any C
4.2 Each Warranty is a separate and independent warranty and, save as expressly provided otherwi y or omission by the other te
4.3 If at an been breach y the Investor in or from any information or advice supplied or given by any director, officer or employee writi raised of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.facts a levant Group Compa
4.4 If there ed at Closing (should nd remedies):
4.5 The Inv ies shall survive
Appears in 1 contract
Sources: Subscription Agreement
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party Seller acknowledges that the terms of Schedule 5 Buyer is entering into this agreement on the basis of, and this clause 8 are in reliance on, the circumstances fair and reasonableWarranties.
8.2 The On the date of this agreement, except as Disclosed, the Seller warrants that each Warranty is true in all respects.
8.3 Subject to clause 8.7, Warranties qualified by the expression so far as the Seller is aware or any similar expression are deemed to be given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf best of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way knowledge, information and the provisions of section 6(2) belief of the Law Seller after it has made reasonable enquiries of Property (Miscellaneous Provisions) P▇▇▇ ▇▇▇▇▇, the Covenantor, D▇▇▇▇ ▇▇▇▇▇▇▇ and M▇▇▇ ▇▇▇▇▇, and the Seller shall be deemed to be aware of all matters that are hereby excluded.
8.3 In so far as within the Warranties relate to matters actual and constructive knowledge of factP▇▇▇ ▇▇▇▇▇, they shall constitute representations in reliance upon which the Buyer has entered into this AgreementCovenantor, D▇▇▇▇ ▇▇▇▇▇▇▇ and M▇▇▇ ▇▇▇▇▇.
8.4 Each of the Warranties is a separate representation or warranty and shall and, unless otherwise specifically provided, is not be restricted in its extent or application limited by the terms of any of the other Warranties or by reference to any other term of Warranty or any other provision in this Agreementagreement.
8.5 Each The Seller agrees that the supply of any information by or on behalf of the Sellers undertakes Company, or any of its employees, directors, agents or officers (“Officers”) to the Seller or its advisers in connection with the Buyer that -
(a) each Warranties, the Disclosure Letter or otherwise shall not constitute a warranty, representation or guarantee as to the accuracy of such information in favour of the Warranties shall remain true Seller. The Seller unconditionally and accurate irrevocably waives all and any rights and claims that it may have against the Company or the persons on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives risewhom that Seller has, or might give risemay have, to a claim under relied in connection with the Warranties preparation of the Disclosure Letter, or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on agreeing the terms of this Agreementagreement, and further undertakes to the Buyer and the Company not to make any such claims.
8.6 If any The rights and remedies of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentationClaim, inaccuracy Indemnity Claim or omission claim under the Tax Covenant shall not be affected by Completion.
8.7 Warranties qualified by the expression since 22 January 2014 or any similar expression are deemed to be repeated by the Seller in or from any information or advice supplied or given by any director, officer or employee of relation to matters prior to 22 January 2014 so far as the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterSeller is aware.
Appears in 1 contract
Warranties. 8.1 5.1 The Sellers represent and warrant jointly and severally Vendor warrants to the Buyer Purchaser in the terms of the Warranties.
5.2 Subject to CLAUSE 6.5, the Warranties are qualified by all facts and matters fairly disclosed (as defined in CLAUSE 5.7 below) in the Disclosure Letter.
5.3 The Vendor undertakes that following a breach of the Warranties the Vendor will, subject to the limitations in CLAUSE 6 and SCHEDULE 7 compensate the Purchaser or the Company (or as the Purchaser directs) and pay a sum equal to the aggregate of:
5.3.1 the amount by which the value of any asset of the Group Member (including any asset warranted to exist which does not exist) is or becomes less than the value it would have had if the breach of Warranty had not occurred; and
5.3.2 the amount of any other loss or liability which the Purchaser or Group Member would not have been subject to or which would not have incurred had the breach of Warranty not occurred. The Purchaser hereby acknowledges that the remedy set out in Schedule 5 herein this CLAUSE 5.3 shall be the Purchaser's exclusive remedy in respect of any Relevant Claim and each party acknowledges that the terms Purchaser shall not be entitled to make any claim for damages in respect of Schedule 5 and this clause 8 are in the circumstances fair and reasonableany such breach on any other basis.
8.2 5.4 The Warranties are given subject Vendor waives and may not enforce any right which the Vendor may have against any Group Member, or any director or employee of any Group Member, on which or on whom the Vendor may have relied in agreeing to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope any term of this Agreement or any statement in the Disclosure Letter (‘Disclosed’) but no other information save that the Vendor does not waive and may enforce any such claim in respect of which directors or employees of any Group Member in the Buyer has actual, constructive case of fraud or imputed knowledge and no investigation wilful default on the part of any director or enquiry made by or on behalf employee of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedGroup Member.
8.3 In so far as the Warranties relate 5.5 Each Warranty is to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties be construed independently and is a separate representation not limited or warranty and shall not be restricted in its extent by any other Warranty or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each 5.6 Unless otherwise specified, where any Warranty refers to the knowledge, information, belief or awareness of the Sellers undertakes with Vendor (or similar expression), the Buyer Vendor will be deemed to have such knowledge, information, belief or awareness as the Vendor would have obtained had the Vendor made all reasonable enquiries into the subject matter of that -Warranty of the Senior Management.
5.7 Unless otherwise specified, where a reference is made to facts or matters fairly disclosed (aor similar expression) each in the context of the Warranties shall remain true fairly disclosed means disclosed in such a manner and accurate in such detail as to enable the Purchaser reasonably to assess the impact of the facts or matters on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 Group.
5.8 The Purchaser hereby confirms to the Vendor that it is not, at the date of this Agreement were hereof, currently intending to make a reference to Relevant Claim against the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementVendor following Completion.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Share Purchase Agreement (Cash America International Inc)
Warranties. 8.1 14.1 The Sellers represent and warrant Warrantors jointly and severally represent, warrant and undertake to and with the Buyer in Purchaser that each of the terms set out in Schedule 5 Warranties is now and each party acknowledges that the terms of Schedule 5 will at Completion be true and this clause 8 are in the circumstances fair and reasonableaccurate.
8.2 14.2 The Warranties are given subject to matters fully, fairly and accurately specifically disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information relating to the Business of which the Buyer Purchaser has actual, constructive knowledge (actual or imputed knowledge constructive) and no investigation or enquiry made by or on behalf of the Buyer Purchaser shall modify or discharge prejudice any claim made by the Sellers’ liability Purchaser under the Warranties or operate to reduce any amount recoverable and liability in any way respect thereof shall not be confined to breaches discovered before Completion. No letter, document or other communication shall be deemed to constitute a disclosure for the purposes of this Agreement unless the same is accepted as such by the Purchaser and is expressly referred to in the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedDisclosure Letter.
8.3 In so far as 14.3 The Warrantors acknowledge that the Warranties relate to matters of fact, they shall constitute representations Purchaser has entered into this Agreement in reliance upon which the Buyer Warranties and has entered been induced by them to enter into this Agreement.
8.4 14.4 Without restricting the rights of the Purchaser or otherwise affecting the ability of the Purchaser to claim damages on any other basis available to it, the Warrantors hereby jointly and severally undertake to indemnify the Purchaser at all times from and against all and any diminution in the value of the Business or the Assets and all and any losses, damages, interest, costs or expenses whatsoever suffered or incurred by the Purchaser as a result of any breach of any of the Warranties including any costs (including legal costs on a solicitor and own client basis), expenses or other liabilities which the Purchaser may incur either before or after the commencement of any action in connection with (i) any legal proceedings in which the Purchaser claims that any of the Warranties has been broken or is untrue or misleading and in which judgment is given for the Purchaser or (ii) the enforcement of any settlement of, or judgment in respect of such claim.
14.5 Each of the Warranties is a shall be separate representation or warranty and independent and, save as expressly provided to the contrary, shall not be restricted in its extent limited by reference to or application by the terms of inference from any of the other Warranties Warranty or by any other term of this AgreementAgreement nor by anything in the Disclosure Letter which is not expressly referenced to the Warranty concerned.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if 14.6 Where any express or implied reference statement in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect any confirmation or certificate given by the willingness Vendors or the Warrantors under or pursuant to this Agreement is qualified by the expression "so far as the Warrantors are aware", "so far as the Vendors are aware", "to the best of a prudent purchaser for value the Warrantors' knowledge and belief" or "to purchase the Shares on best of the terms of this AgreementVendors' knowledge and belief" or any similar expression, that statement shall be deemed to include an additional statement that it has been made after due and careful enquiry.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together 14.7 The Warrantors hereby agree with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or Purchaser to waive any member of the Buyer’s Group) or the Company rights which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it they may have in respect of any misrepresentationmisrepresentation or inaccuracy in, inaccuracy or omission in or from from, any information or advice supplied or given by any director, officer or employee of the Company for Transferring Employees in connection with the purpose giving of assisting the Sellers Warranties and the preparation of the Disclosure Letter.
14.8 The Warrantors shall not, and shall procure that (save only as may be necessary to give effect to this Agreement) none of their respective Associated Companies shall, do, allow or procure any act or omission before Completion which will cause the Warrantors to be in breach of any of the Warranties when given at Completion.
14.9 The Warrantors hereby agree to disclose promptly to the Purchaser in writing immediately upon becoming aware of the same, any matter, event or circumstance (including any omission to act) which may arise or become known to it after the date of this Agreement and before Completion which:
14.9.1 constitutes a breach of or is inconsistent with any of the Warranties or will constitute a breach of any of the Warranties when given at Completion; or
14.9.2 has, or is likely to prepare have, an adverse effect on the Disclosure Letterfinancial position or prospects of the Business.
14.10 The Vendors shall give to the Purchaser and its solicitors and accountants both before and after Completion all such information and documentation relating to the Business and the Assets as the Purchaser shall reasonably require to enable it to satisfy itself as to the accuracy and due observance of the Warranties.
14.11 The liability of the Warrantors under the Warranties:
14.11.1 shall save in relation to paragraphs 1.7, 2.1 to 2.11 and 7.6 of Schedule 1 (the "ENDURING WARRANTIES") cease after 2 years except in respect of matters which have been the subject of a written claim made before such date by the Purchaser or the Purchaser's Solicitors to the Vendors;
14.11.2 shall in relation to the Enduring Warranties cease after 3 years except in respect of matters which have been the subject of a written claim made before such date by the Purchaser or the Purchaser's Solicitors to the Vendors;
14.11.3 shall be limited to a maximum amount equal to the aggregate amount of the Purchase Price, unless in any case the relevant claim or claims has arisen by reason of fraud, wilful concealment, dishonesty or deliberate non-disclosure on the part of any of the Warrantors or any Associated Company of the Vendors or in any case where the relevant claim(s) is/are material and such claim(s) has/have arisen by reason of fraud, wilful concealment, dishonesty or deliberate non-disclosure on the part of any of their respective agents, officers or employees, in which event there shall be no limit under this Agreement on the amount recoverable by the Purchaser from the Warrantors in respect of such claim or claims or the time within which such claim or claims may be brought.
14.12 The provisions of this Clause 14.12 shall operate to limit the liability of the Warrantors in respect of any claim under or in connection with the Warranties and references to "claim" or "claims" shall be construed accordingly. The Purchaser and the Warrantors agree as follows:
14.12.1 in the event that the Purchaser is entitled to recover any sum (whether by payment, discount, credit, set-off or otherwise) from any third party in respect of any matter for which a claim has been made against the Warrantors pursuant to this Clause 14 and in respect of which it has received payment from the Warrantors, the Purchaser shall as soon as reasonably practicable account to the Warrantors in respect of any amount so recovered from such third party (after deduction of all reasonable costs and expenses of the recovery);
14.12.2 in the event that a claim against the Warrantors arises as a result of or in connection with a liability to or a dispute with any third party, the Purchaser shall notify the Warrantors in writing of any such third party claim and take such action as the Warrantors may reasonably require to avoid, resist, contest or compromise any such claim, provided that:
14.12.2.1 the Purchaser is indemnified to its reasonable satisfaction by the Warrantors against any reasonable cost and expenses and any liabilities, penalties and fines which may be incurred by the Purchaser in taking such action; and
14.12.2.2 the Purchaser shall not, in any event, be required to take any steps which would affect the future conduct of the Business, the business of the Purchaser or any member of the UTi Group or affect the rights or reputations of any of them;
14.12.3 any claim made by the Purchaser for breach of Warranty shall be reduced by the amount of any payment made by the Warrantors in respect of the same facts or circumstances pursuant to the other provisions of this Agreement;
14.12.4 nothing in this Agreement shall limit or restrict the Purchaser's general obligation at law to take reasonable steps to mitigate any loss or damage which it may incur in consequence of any matter giving rise to a potential claim under this Agreement;
14.12.5 the Vendors shall be under no liability in respect of a breach of any of the Warranties unless the Vendors shall have received written notice thereof from the Purchaser; and
14.12.6 the Vendors shall be under no liability in respect of any breach of the Warranties if such liability would not have arisen but for something voluntarily done or omitted to be done (other than required by law or pursuant to a legally binding commitment created on or before Completion) by the Purchaser after the Completion Date and otherwise than in the ordinary course of business.
14.13 The Warranties together with any provisions of this Agreement which shall not have been fully performed at Completion shall remain in force notwithstanding Completion.
14.14 If any sum payable by the Warrantors under this Clause 14 shall be subject to Tax (whether by way of deduction or withholding or direct assessment of the person entitled thereto) such payment shall be increased by such an amount as shall ensure that after deduction, withholding or payment of such Tax the recipient shall have received a net amount equal to the payment otherwise required hereby to be made.
Appears in 1 contract
Warranties. 8.1 UNDERTAKINGS -----------------------
(A) The Sellers represent Vendor hereby represents, warrants and warrant jointly and severally undertakes to the Buyer Purchaser in the terms set out in Schedule 5 2 and each that at Completion:-
(i) the Sale Shares will be free from all rights of pre-emption, options, liens, claims, equities, charges, encumbrances and third-party acknowledges that rights of any nature;
(ii) Acewin will be the terms beneficial owner of Schedule 5 and this clause 8 are a 100% interest in the circumstances fair and reasonableissued share capital of China Machine; and
(iii) China Machine will be the beneficial owner of a 55% interest in the registered capital of the Wuxi Joint Venture.
8.2 (B) Any material breach of any of the representations, warranties, undertakings or indemnities made or given by the Vendor hereunder which adversely affects the value of the Group occurring before Completion shall, in addition and without prejudice to any other rights or remedies available to the Purchaser, entitle the Purchaser to rescind this Agreement without penalty.
(C) The Purchaser shall not be entitled to make any claims against the Vendor arising out of or in connection with any breach or alleged breach of the Warranties are given (any "Warranty Claim") (i) after expiry of the period of two years following the date of Completion except in respect of those matters or circumstances which have been the subject of a claim made hereunder or in respect of those circumstances which may give rise to matters fully, fairly a claim made hereunder and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which notice has been given to the Buyer has actual, constructive Vendor on or imputed knowledge and no investigation prior to such date or enquiry made by or on behalf (ii) where the aggregate amount of the Buyer that Warranty Claim does not exceed US$100,000. The Vendor's aggregate liability for all Warranty Claims shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludednot exceed US$13,950,000.
8.3 In so far (D) insofar as the Warranties relate in whole or in part to matters of fact, they shall constitute representations in reliance upon the faith of which the Buyer Purchaser has entered into this Agreement.
8.4 Each Agreement and each of the Warranties is shall be construed as a separate representation or warranty Warranty and (save as expressly provided to the contrary) shall not be limited or restricted in its extent or application by reference to the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each (E) The Vendor hereby undertakes that it will from time to time prior to Completion, promptly notify the Purchaser in writing of any event, circumstance matter or thing of which it becomes aware which is a material breach of or materially inconsistent with any of the Sellers undertakes with the Buyer that -Warranties.
(aF) each Any rights to which the Purchaser may be or become entitled by reason of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy and all remedies which may be available to the Buyer, pay to the Buyer (or to the relevant member Purchaser in consequence of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties being untrue or misleading or breached shall enure for the benefit of any wholly-owned subsidiary of the Purchaser which has with the prior written consent of the Vendor (not to be unreasonably withheld) explicitly referring to this Clause become the beneficial owner for the time being of the Sale Shares and accordingly any loss which is sustained by such wholly-owned subsidiary in consequence of any of the Warranties being untrue misleading or breached shall be deemed to be that of the Purchaser and the Purchaser may bring proceedings and exercise any other remedy on the footing that it has been the beneficial owner of the Sale Shares at all times from Completion.
(G) The Vendor undertakes and agrees:-
(i) in the event that the book value of all stock-in-trade and inventory owned by members of the Group as at the Completion Date is or has not been fully realised in cash by the relevant Group Company within a period of nine (9) months after Completion, to pay to the Purchaser, forthwith after the expiration of the said nine-month period, an amount equal to fifty-one percent (51%) of such unrealised value; and
(ii) in the event that the book value of any of the accounts receivable (both trade and others, including any debts or loans to third parties) due to members of the Group as at the Completion Date is or has not been fully realised in cash by the relevant Group Company within a period of six (6) months from the date on which such debt or loan becomes due and payable, to pay to the relevant Group Company, forthwith upon expiration of the said six-month period, an amount equal to fifty-one percent (51%) of such unrealised value.
(H) Subject to the Vendor's compliance with sub-clause 4(G)(i) and (ii) above, the Purchaser agrees to pay to the Vendor a sum equal to all sales proceeds in respect of such stock-in-trade and inventory received by the relevant Group Company from time to time after expiration of the said nine-month period referred to in Clause 4(G)(i), and any payments in respect of such accounts receivable received by the relevant Group Company from time to time after the expiration of the relevant period referred to therein and provided always that the total payments by the Purchaser and the Vendor as aforesaid shall not exceed the amounts paid by the Vendor to the Purchaser under sub-clauses 4(G)(i) and (ii) above and the Purchaser shall (subject to indemnity from the Vendor as to 51% of the costs thereof) take such legal or other legal proceedings for the recovery of any book debts or accounts receivable as the Vendor may reasonably require.
(1) The Vendor shall procure:-
(i) for the Wuxi Joint Venture, a land use rights certificate in respect of the Site, issued by the Wuxi land bureau in the name of the Wuxi Joint Venture;
(ii) for the Purchaser, written approval from the Wuxi Vibration Isolator Factory of the replacement of those members of the board of directors of the Wuxi Joint Venture who were nominated by China Machine with new directors, selected by the Purchaser and thereafter nominated by China Machine;
(iii) for each of the Wuxi Joint Venture and the Wuxi Vibration Isolator Factory, the termination of all contracts and agreements relating to the Wuxi Vibration Isolator Factory Compound Damping Materials Branch Factory( ) the Wuxi Jieda Vibration Isolator Metal Parts Company( ) and the Shanghai Sidalizhen Engineering Company( ) and to arrange for the PRC State Administration for Industry and Commerce either to cancel the business licence of each of these three companies or to prepare revise their registrations to remove as an investor in them the Disclosure LetterWuxi Joint venture or the Wuxi Vibration Isolator Factory, as relevant;
(iv) within two weeks after Completion, in respect of Vulkan Couplings, copies of (i) the government approval of the joint venture contract, articles of association and feasibility study, (ii) the approval certificate and (iii) the business licence, all providing for terms substantially the same as those provided in the joint venture contract in respect of the establishment of Vulkan Couplings dated 6th December, 1995;
(v) within three months after Completion, unconditional and final discharge and full release of the guarantee issued by the Wuxi Joint Venture in favour of Wuxi Communication Bank in the amount of RMB800,000 in 1995 in a form acceptable to the Purchaser.
Appears in 1 contract
Warranties. 8.1 7.2.1 The Sellers Company and the Sellers, jointly and severally, represent and warrant jointly and severally to the Buyer Purchaser that the representations and warranties as set out in: (a) Part A of Schedule III (Warranties) (“Fundamental Warranties”) are true, accurate and complete in all respects as on the terms Execution Date and shall continue to remain true, accurate and complete in all respects as on the Closing Date; and (b) the representations and warranties as set out in Schedule 5 and each party acknowledges that the terms Part B of Schedule 5 III (Warranties) (“Company Business Warranties”) are true, accurate and this clause 8 are complete in all respects as on the circumstances fair Execution Date and reasonableshall continue to remain true, accurate and complete in all respects as on the Closing Date, except as Disclosed.
8.2 7.2.2 The Company Business Warranties provided by the Company and the Sellers in this Agreement are given subject to and qualified by facts and matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope Disclosed in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they Purchaser shall constitute representations accordingly have no Indemnity Claim in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms respect of any of the Company Business Warranties in relation to any fact or matter so Disclosed or with respect to matters arising out of such Disclosure. It is clarified that: (A) no disclosure made in the Disclosure Letter shall be deemed adequate to disclose an exception to a Company Business Warranty, unless the disclosure contained therein identifies the relevant facts, matters, events and circumstances for such exception fully, specifically and accurately; and (B) no Disclosures shall be made against the Fundamental Warranties by the Sellers. A reference to any facts and circumstances being Disclosed in the Disclosure Letter shall be deemed to be a reference to them being fully, specifically and accurately Disclosed in the Disclosure Letter in such a manner that in the context of the disclosures contained in the Disclosure Letter: (i) the significance of the information disclosed and its relevance to a particular Company Business Warranty shall be highlighted by the Company and the Sellers in a manner reasonably expected to be understandable by the Purchaser, taking into account the paragraphs or subject matters in relation to which the information was Disclosed; and (ii) there is not omitted from, the information disclosed, any information which would have the effect of rendering the information so Disclosed untrue, incomplete or inaccurate in any respect; and (iii) in the context of any document treated as Disclosed by the Disclosure Letter, the matter disclosed is reasonably apparent from the terms of the document. The Parties agree and acknowledge that nothing disclosed to the Purchaser other Warranties than the disclosures made pursuant to or by any other term in the Disclosure Letter in accordance with the provisions of Clause 7.2.2 and Clause 7.2.3 shall constitute disclosure to the Purchaser for the purposes of this Agreement.
8.5 Each 7.2.3 It is hereby agreed between the Parties that at least 4 (four) Business Days prior to the Closing Date, the Sellers and the Company may provide the Purchaser with an updated version of the Disclosure Letter (“Updated Disclosure Letter”), updated solely for the events occurring between the Execution Date and Closing Date which were not in the Knowledge of the Company as on the Execution Date. It is clarified that updates provided in the Updated Disclosure Letter shall not be deemed to have been included in the Disclosure Letter unless such updates are acceptable to the Purchaser in its sole and absolute discretion. Notwithstanding anything to the contrary, in the event that the Company and the Sellers undertakes with propose to update the Buyer that -
Disclosure Letter prior to the Closing, the Purchaser shall have the right, in its sole and absolute discretion, to (a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express reject one or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Datemore such updates; and
and/or (b) it shall immediately disclose accept any and/or all of such updates and proceed towards Closing subject to the Buyer Sellers undertaking to indemnify the Seller Indemnified Persons in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice relation to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingLosses arising therefrom.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Share Purchase Agreement (Akorn Inc)
Warranties. 8.1 15.1 The Sellers represent Vendor represents warrants and warrant jointly undertakes to and severally with the Purchaser and its successors in title that the Warranties are at the date of this Agreement and will be at the date of Completion and the Transfer Date true and correct in all material respects. The Vendor undertakes to the Buyer in Purchaser to indemnify the terms set out in Schedule 5 Purchaser fully at all times from and each party acknowledges that the terms of Schedule 5 against all costs claims proceedings demands and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of expenses which the Buyer has actual, constructive Purchaser may sustain incur or imputed knowledge pay by reason of any breach of any of the Warranties
15.2 The remedies of the Purchaser in respect of breach of any of the Warranties shall continue to subsist notwithstanding Completion 15.3 The rights and no remedies of the Purchaser in respect of any breach of the Warranties shall not be affected by any investigation or enquiry made by or on behalf of the Buyer shall modify or discharge Purchaser into the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) affairs of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application Vendor by the terms Purchaser failing to exercise or delaying the exercise of any of the other Warranties its rights or remedies or by any other term of event or matter whatever except a duly authorised written waiver or release
15.4 The Purchaser acknowledges that in entering into this AgreementAgreement (other than as expressly represented warranted or otherwise set forth herein): 15.
8.5 Each of 4:1 the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true Purchaser was not induced to execute and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of deliver this Agreement were a reference to by any warranty representation inducement promise or side agreement of any kind type characterization nature or description made by the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, Vendor and/or its agents employees or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, companies affiliated with the Sellers shall, without prejudice to any Vendor 15.
4:2 the Purchaser received independent advice from legal financial engineering architectural and other right or remedy which may be available similar professionals of its choice with respect to the Buyer, pay advisability of purchasing the Assets pursuant to the Buyer (stipulations agreements conditions and covenants contained and set forth in this Agreement 15.4:3 neither the Vendor nor its agents employees or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties companies affiliated with the Vendor has made any warranties representations or guarantees express implied or statutory written or oral to prepare the Disclosure Letter.Purchaser and the Purchaser specifically understands and acknowledges that neither the Vendor nor its agents employees or affiliated companies or entities shall have any liability of whatsoever kind nature or description to the Purchaser in connection with the probability of success of the operation of the Business or otherwise and the Purchaser has accepted the Assets AS-IS-WHERE-IS with all faults and without any warranties expressed or implied or whatsoever kind type nature description or characterization
Appears in 1 contract
Warranties. 8.1 SUPPORT -------------------------------
9.1 The Sellers represent "Warranty Period" for ST shall be in effect for * following ST's acceptance of the QI Deliverables incorporated in a Product. The "Warranty Period" for a Customer shall be in effect for * following the date of the first shipment of a Product to such Customer. QI warrants that during the Warranty Period, the Product shall operate in all material respects in accordance with the Documentation therefor. During the Warranty Period, ST/Customer shall promptly notify QI in writing of any instances where the Product does not operate in all material respects in accordance with the Documentation. QI will use its reasonable good faith efforts to remedy the situation within * in accordance with the Documentation and warrant jointly Acceptance Criteria. In the event that QI is unable to remedy the situation within the time frame specified above, QI will provide ST/Customer with a written detailed plan, including a schedule and severally to outlining the Buyer in the terms set out in Schedule 5 problem and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonablepossible resolutions.
8.2 The Warranties are given subject 9.2 During the Warranty Period, QI will provide, free of charge, the following support services to matters fully, fairly and accurately disclosed in sufficient detail ST/Customer relating to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -QI Deliverables:
(a) each of the Warranties shall remain true and accurate on each day up Telephone support services to and including the Completion Date as if any express or implied reference in Schedule 5 which ST/Customer can ask all questions related to the date use of this Agreement were a reference QI Deliverables. QI's engineers or other competent personnel shall use their good faith efforts promptly to address questions from ST/Customer and to return calls to ST/Customer. QI shall render such advice necessary or appropriate to ST/Customer concerning the Completion Date; use of QI Deliverables and, if need be, shall help to identify solutions to bypass problems. [*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 9
(b) it shall immediately disclose The forwarding to ST/Customer of any documents and information, other than source code, related to the Buyer use of QI Deliverables, which describe solutions to most frequent difficulties, as and when such documents are developed by QI from time to time.
(c) Such reasonable on-site assistance at the location indicated by ST/Customer, which consists of assisting ST/Customer in writing any matter which becomes known defining the problem and obtaining elements necessary to it before Completion find a solution.
9.3 The Parties agree to use their good faith efforts to negotiate and which gives riseagree upon such reasonable terms and conditions for QI to provide support and maintenance, or might give riseafter the Warranty Period, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value ST and/or Customers relating to purchase the Shares on the terms of this AgreementQI Deliverables.
8.6 If any 9.4 QI will use its good faith commercially reasonable efforts to establish direct Customer support services to be provided to Customers worldwide. In connection with such worldwide Customer support services, ST will use its good faith commercially reasonable efforts to make available to QI the facilities of the Warranties shall prove established worldwide customer service network of ST and of ST Affiliates, and also to provide the resources necessary, as will be untrue or misleadingagreed to by the Parties, the Sellers shall, without prejudice for technical interface with Customers through such established worldwide customer service network.
9.5 The Parties agree to any other right or remedy which may be available use their good faith efforts to the Buyer, pay negotiate and agree upon such reasonable terms and conditions for QI to the Buyer (or to the relevant member provide ST with new functionalities of the Buyer’s Group) on demand -
(a) Software and the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingdocumentation therefor.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Development Contract (Divicore Inc)
Warranties. 8.1 7.1 The Sellers Vendor and FAI jointly and severally represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges Purchaser that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Company Warranties shall remain is true and accurate at the date of this agreement and will be true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 Date.
7.2 The Vendor and Cervale jointly and severally represent and warrant to the Purchaser that each of the Asset Warranties is true and accurate at the date of this Agreement were agreement and will be true and accurate on each day up to and including the Completion Date.
7.3 Each of the Warranties is separate and independent and is not limited by reference to any other Warranty or any other provision in this agreement.
7.4 Each of the Company Warranties:
(a) applies in relation to each Group Company and, except where expressly otherwise provided, separately in relation to each Group Company as if each reference in SCHEDULE 6 to the 'Company' is a reference to the Completion Datethat Group Company; and
(b) it shall immediately disclose remains in full force and effect on and after the Completion Date despite Completion.
7.5 Each of the Asset Warranties remains in full force and effect on and after the Completion Date despite Completion.
7.6 Provided that all matters disclosed in SCHEDULE 8 have been disclosed separately to the Buyer Purchaser at least three days prior to the date of execution of this agreement, the Purchaser acknowledges that none of the matters disclosed in writing SCHEDULE 8 or any other matter which becomes known referred to it before Completion and which gives riseor contemplated by this agreement, or might including, without limitation, NZ Completion, can give rise, rise to a claim breach of Warranty. No other information relating to any Group Company of which the Purchaser has knowledge, actual or constructive, prejudices any Claim of the Purchaser under the Warranties nor operates to reduce any amount recoverable.
7.7 Subject to CLAUSE 7.8, if there is a breach of or inaccuracy in any of the Warranties on or before Completion the Purchaser may immediately terminate this agreement by notice in writing to the Vendor but is not entitled to any other remedy.
7.8 The Vendor must immediately notify the Purchaser in writing of any facts or circumstances of which would materially affect it becomes aware which constitute or may constitute a breach of any Warranty ('NOTIFIED BREACH'). The Purchaser must notify the willingness Vendor within 15 days of receipt of such notice, or before Completion, whichever occurs earlier, whether or not it has elected to terminate this agreement as a result of a prudent purchaser for value Notified Breach in accordance with CLAUSE 7.7. The Purchaser acknowledges that if it makes no election within 15 days of receipt of such notice, or before Completion, whichever occurs earlier, then the Purchaser waives any rights it may have to purchase terminate this Agreement in respect of the Shares on Notified Breach.
7.9 The rights and remedies of the Purchaser in respect of any breach of the Warranties or of the terms of this Agreementagreement are not affected by Completion.
8.6 If any of 7.10 The Vendor and FAI jointly and severally indemnify the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -Purchaser from all Claims:
(a) the amount made by any third party in relation to a matter which the value constitutes, or in circumstances that constitute, a breach of any of the Shares is less than it would have been had such Warranty been true and not misleadingCompany Warranties or any other covenant or representation in this agreement; or
(b) which the amount necessary to put Purchaser or any Company suffers or incurs by reason of any of the Company Warranties or any other covenant or representation made in this agreement being untrue or inaccurate in any respect or by reason of any failure by the Vendor or FAI to fulfil its obligations under this agreement.
7.11 The Vendor and Cervale jointly and severally indemnify the Purchaser from all Claims:
(a) made by any member third party in relation to a matter which constitutes, or in circumstances that constitute, a breach of any of the Buyer’s Group into Asset Warranties or any other covenant or representation in this agreement; or
(b) which the position it would have been Purchaser or any Company suffers or incurs by reason of any of the Asset Warranties or any other covenant or representation made in had such Warranty been true and not misleading; together with the amount this agreement being untrue or inaccurate in any respect or by reason of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly any failure by the Buyer Vendor or Cervale to fulfil its obligations under this agreement.
7.12 Notwithstanding any other provision of this agreement:
(or any member of a) the Buyer’s Group) or the Company which it would Vendor shall not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have liability in respect of any misrepresentation, inaccuracy Claim under the Warranties unless reasonable particulars of the Claim are given to the Vendor before the third anniversary of Completion;
(b) the liability of the Vendor in respect of any Claim under the Warranties shall be reduced to the extent that the Claim has arisen as a result of any act or omission after Completion by the Purchaser;
(c) the Vendor shall not be liable in respect of any Claim under the Warranties unless the aggregate of all Claims made against the Vendor under the Warranties exceeds the sum of $1,000,000, but thereafter the Vendor will be liable for the whole amount payable in respect of all claims, and not just the excess over $1,000,000.
7.13 The Purchaser acknowledges and agrees that, except for the Warranties, the Vendor has not given, nor has the Purchaser relied upon, any representation, warranty, statement or from any information document or advice supplied other conduct by the Vendor or given by any director, officer its representatives in connection with the Companies or employee the Business.
7.14 The Purchaser must (at the cost of the Company for Vendor) take such action as the purpose Vendor may request in relation to a Notified Breach, including without limitation:
(a) prosecute any action or proceedings, including the making of assisting any counter-claim or cross-claim against any person;
(b) conduct any negotiations and participate in any investigation in respect of such notified breach;
(c) not accept, pay or compromise such notified breach without the Sellers Vendor's prior written consent; and
(d) co-operate and procure its solicitors, accountants and other representatives to give any co-operate with the Vendor and its counsel, accountants or other representatives in respect of the Warranties or to prepare the Disclosure Lettersuch notified breach.
Appears in 1 contract
Sources: Share Purchase Agreement (Home Security International Inc)
Warranties. 8.1 7.1 The Sellers Warrantors warrant and represent and warrant jointly and severally to the Buyer Purchaser in the terms set out in Schedule 5 and each party acknowledges that of the terms Warranties at the date of Schedule 5 and this clause 8 are in the circumstances fair and reasonableAgreement.
8.2 7.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) duly Disclosed but no other information relating to the Company of which the Buyer Purchaser has actual, constructive knowledge (actual or imputed knowledge and no investigation or enquiry constructive) shall prejudice any claim made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability Purchaser under the Warranties in or operate to reduce any way and the amount recoverable. The provisions of section 6(2) 6.2 of the Law of Property (Miscellaneous Provisions) Ac▇ ▇▇▇▇ ▇re excluded from this Agreement.
7.3 Each of the Warranties set out in each paragraph of Schedule 4 shall be separate and independent and save as expressly provided otherwise in this Agreement or in the Tax Deed (in particular, but without limitation) Schedule 6 of this Agreement and Clauses 2.3 and 3 of the Tax Deed) shall not be limited by reference to any other paragraph of Schedule 4 or any other provision of this Agreement or of the Tax Deed.
7.4 Where the Purchaser is entitled to make a claim against the Warrantors in respect of a breach of any of the Warranties (and including for the avoidance of doubt for misrepresentation) the Purchaser shall be entitled to make a claim against ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ are hereby excludedas if ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ had given the Warranties on the basis set out in this Agreement subject always to the provisions of Schedule 6.
8.3 In so far as 7.5 The rights and remedies conferred on the Warranties relate Purchaser under this Agreement are cumulative and are additional to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms exclusive of any of the other Warranties rights or remedies provided by law or otherwise available at any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose time to the Buyer in writing respect of any matter which becomes known to it before Completion and which gives rise, or might give rise, giving rise to a claim for breach of Warranty.
7.6 The Warranties shall not in any respect be extinguished or affected by Completion.
7.7 Any information supplied by or on behalf of the Company or any of its officers employees or agents to the Vendors or their advisers in connection with the Warranties the Disclosure Letter or the Tax Deed shall not constitute a warranty or representation of the accuracy of the same in favour of the Vendors and the Vendors undertake to the Purchaser to waive any and all claims which they might otherwise have against the Company and any of its officers managers employees or agents in respect of the same other than against any of the Vendors.
7.8 The provisions of Schedule 6 and the Tax Deed shall operate to limit the liability of the Vendors under the Warranties or which would materially affect provided that the willingness of a prudent purchaser for value limitations contained in Schedule 6 shall not apply to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleadingcontained in Paragraphs 2.1.1, the Sellers shall2.1.2, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member 2.2.1 and 2.2.3 and 2.12.1 of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingSchedule 4.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (SGS International, Inc.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally Seller hereby warrants to Buyer that:
a) At the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇▇ ▇▇▇▇▇▇ are hereby excludedtenders the Equipment to Buyer at the Delivery Point, Seller shall have full legal and beneficial title to the Equipment, free and clear of any and all security interests, liens, claims, charges or encumbrances of any nature whatsoever, together with full power and lawful authority to deliver the Equipment to Buyer; and upon delivery of the Equipment ▇▇▇▇ of Sale to Buyer in accordance with Section 3.2 above, Seller shall have transferred good and marketable title to the Equipment to Buyer.
8.3 In so far b) Seller hereby assigns to Buyer any and all existing assignable warranties, service life policies and patent indemnities of manufacturers of components of the Equipment; and upon the request of Buyer, Seller shall give Buyer reasonable assistance in enforcing the rights of Buyer arising as a result of this Agreement but Buyer shall reimburse Seller for the Warranties relate actual and reasonable costs and expenses incurred by Seller in rendering such assistance; and, from time to matters time, upon the request of factBuyer, they Seller shall constitute representations in reliance upon which give notice (with copies to Buyer) to any such manufacturers of the Buyer has entered into this Agreementassignment of such warranties, service life policies and patent indemnities to Buyer.
8.4 Each c) ▇▇▇▇▇▇▇▇▇ warrants that at Closing, the Engine will start and run per basic GE specifications, producing 22.5 MW of power adjusted to ISO conditions, and will run within all vibration parameters. Notwithstanding anything to the Warranties is a separate representation or warranty and shall not be restricted contrary herein, upon Buyer providing Final Acceptance to Seller in its extent or application by accordance with the terms and conditions herein, the obligations under this warranty section 4(c) shall be considered to have been fully complied with, and Seller shall be relieved of any of the other Warranties or by any other term further warranty obligations under this section 4(c). For purposes of this Agreement.
8.5 Each , “Final Acceptance” shall occur upon Buyer’s initial start-up and running of the Sellers undertakes with Engine following installation at its plant. To the Buyer extent that -
(a) each the Engine either does not produce 22.5 MW of the Warranties shall remain true and accurate on each day up power adjusted to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives riseISO conditions, or might give rise, does not run within all vibration parameters then the Purchase Price shall be adjusted. The Parties agree to mutually negotiate in good faith to reach a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares settlement on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses the Purchase Price adjustment. In no case, shall the Purchase Price adjustment be in excess of ten percent (including legal and other professional fees and expenses10%) of the Purchase Price. Upon reaching agreement on the Purchase Price adjustment (if any), Seller shall pay to Buyer, in immediately available funds, the costs amount of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingPurchase Price adjustment.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 The 9.1 Each of the Sellers represent severally warrants (in respect of itself only and warrant jointly and severally not any other person) to the Buyer in the terms set out of part 1 of schedule 4 in Schedule 5 relation to that Seller only, both as at the Signing Date and each party acknowledges that as at Completion.
9.2 Each of the Sellers severally warrants to the Buyer in the terms of Schedule 5 schedule 4 (other than part 1 thereof) and this clause 8 are part 2 of schedule 5, in each case both:
9.2.1 as at the Signing Date, except as disclosed in the circumstances fair Disclosure Letter; and
9.2.2 as at Completion, except as disclosed in the Disclosure Letter and reasonablethe Completion Disclosure Letter.
8.2 The 9.3 For the purposes of clauses 9.1 and 9.2.2, where any Warranties are given subject as at Completion, any references in any of the Warranties to matters fully, fairly and accurately the Signing Date shall be regarded as a reference to the Completion Date.
9.4 A matter shall be regarded for the purposes of clause 9.2 as disclosed in sufficient the Disclosure Letter and/or the Completion Disclosure Letter only to the extent that the disclosure is contained in the Disclosure Letter or any of the documents attached or specifically referred to in the Disclosure Letter by referencing the location in the Data Room to it and/or in the Completion Disclosure Letter or any of the documents attached to it or specifically referred to in the Completion Disclosure Letter by referencing the location in the Data Room and in either case is made in such manner and in such detail to enable the Buyer to understand their nature and scope make a reasonable assessment of the matter concerned. The provisions of this clause 9.4 shall prevail over any provision to the contrary in the Disclosure Letter (‘Disclosed’) but no other information of which and/or the Completion Disclosure Letter.
9.5 The Sellers shall be entitled to deliver to the Buyer has actualimmediately prior to Completion the Completion Disclosure Letter disclosing matters relating to the Warranties, constructive but may disclose in the Completion Disclosure Letter only facts or imputed knowledge circumstances arising after the Signing Date and no investigation or enquiry made by or on behalf of to the Buyer shall modify or discharge extent that the Sellers’ liability under the Warranties in Completion Disclosure Letter purports to disclose any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to other matters, those matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date regarded as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company disclosed for the purpose purposes of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letterclause 9.
Appears in 1 contract
Sources: Sale and Purchase of Shares Agreement (Nice Systems LTD)
Warranties. 8.1 6.1 The Sellers represent Warrantors acknowledge that the Investor has been induced to enter into this Agreement and warrant to subscribe for the New Shares on the basis of and in reliance upon the Warranties amongst other things.
6.2 The Warrantors jointly and severally warrant to the Buyer in the terms irvestor that each and every Warranty set out in Schedule 5 4 is true, accurate and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to misleading at the date of this Agreement were and at the Closinc and Fulfilment Date subject only to any exceptions expressly provided for under this Agreement.
6.3 Each Warranty is a separate and independent warranty, and, saves as othe-wise expressly provided, no Warranty shall be limited by reference to any other Warranty or by the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the other terms of this Agreement.
8.6 If 6.4 The rights and remedies of the Investor in respect of any breach of any of the Warranties shall prove not be affected by Closing, any investigation made any or on behalf of the Investor into the affaires of the Group and Chinacomm or ary other event or matter whatsoever which otherwise might have affected such rights and remedies except a specific and duly authorized written waiver of release.
6.5 Where any Warranty is qualified by the expression "so far as the Warrantors are aware” or words having similar effect, such Warranty shall be deemed to include a statement that such awareness means both the actual knowledge of the Warrantors and also such knowledge which the Warrantors would have had if they had made reasonable enquiry of all relevant persons.
6.6 Any information suppled by the Company, Chinacomm and any other Group Company, and their respective officers, employees or agents to the Warrantors or their agents, representatives or advisers in connection with or which forms the basis of, any of the Warrarties or otherwise in relation to the business and affairs of the Company or Chinacomm or any Group Compary (whether before or after the date hereof) shall be untrue deemed not to irclude or misleadinghave included a representation, warrarty or guarantee of its accuracy by the Sellers shallCompany, without prejudice Chinacornm ard any Group Company to the Warrantors and shall not constitute a defence to any other right or remedy which may be available to Claim by the BuyerInvestor. The Warrantors hereby irrevocably waive any and all claims against the Company, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company Chinacomm and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensesCompany, the costs of management time and all other consequential losses whether directly their respective officerss, employees or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have agents in respect of any misrepresentationinformation so supplied (and undertakes that no other person claiming under or through it will make any such claim) save for those claims arising out of fraud or wilful misrepresentation by the Company, inaccuracy Chinacomm any Group Company, and their respective officers, employees or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letteragents.
Appears in 1 contract
Sources: Subscription and Shareholders' Agreement (China Tel Group Inc)
Warranties. 8.1 The Sellers represent and warrant jointly and severally 7.1 Innervation warrants that following delivery of Your Purchase to the Buyer You, each item of Goods in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
Purchase will (a) each of be reasonably suitable for the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
purposes for which it is generally intended, (b) it shall immediately disclose be of good quality, in good working order and free of any defects, and (c) be useable and durable, having regard to the Buyer in writing use to which it would normally be put and to all the surrounding circumstances of its supply, and (d) comply with any matter which becomes known to it before Completion and which gives risestandards set under the Standards Act, 1993, or might give riseany other public regulation applying to that item of Goods, for a period of 6 months, SUBJECT TO THE FOLLOWING –
7.1.1 IF AN ITEM OF HYGIENIC GOODS EXPIRES (CHECK THE 'EXPIRY DATE' ON ITS CONTAINER OR PACKAGING) EARLIER THAN THE 6 MONTH WARRANTY PERIOD THEN ITS WARRANTY PERIOD WILL EXPIRE ON THAT 'EXPIRY DATE'; AND
7.1.2 THE WARRANTY PERIOD FOR AN ITEM OF HYGIENIC GOODS WILL IMMEDIATELY EXPIRE UPON IT (A) BEING USED, AND/OR (B) BECOMING COMPROMISED.
7.2 Subject to clause 8, should any defect arise in any item of Goods in Your Purchase which You believe would be covered by the warranty, You must promptly return that item of Goods to Innervation (by delivery, post, fax or e-mail to the address in clause 16 the reasonable costs of which will be reimbursed to You by Innervation, subject to clause 8) enclosing a claim under written notification describing the Warranties defect and Innervation will, at its option (exercised reasonably), (a) determine whether or which would materially affect not the willingness warranty covers the item of a prudent purchaser for value to purchase Goods concerned, and, if so, (b) remedy or replace the Shares on defective item of Goods. If Innervation has previously remedied the affected item of Goods in terms of this Agreementwarranty during the immediately preceding 3 month period, then Innervation will replace the defective item of Goods. Any remedial work undertaken by Innervation will be warranted for a period of 90 days following delivery of same to You, SUBJECT TO THE FOLLOWING –
7.2.1 IF AN ITEM OF HYGIENIC GOODS EXPIRES (CHECK THE 'EXPIRY DATE' ON ITS CONTAINER OR PACKAGING) EARLIER THAN THE 90 DAY WARRANTY PERIOD THEN ITS WARRANTY PERIOD WILL EXPIRE ON THAT 'EXPIRY DATE'; AND
7.2.2 THE WARRANTY PERIOD FOR AN ITEM OF HYGIENIC GOODS WILL IMMEDIATELY EXPIRE UPON IT (A) BEING USED, AND/OR (B) BECOMING COMPROMISED.
8.6 If 7.3 THE WARRANTIES IN CLAUSES 7.1 AND 7.2 WILL NOT APPLY IN RESPECT OF DEFECTS OR FAULTS ARISING IN AN ITEM OF GOODS DUE TO OR RESULTING FROM –
7.3.1 ANY ALTERATION, ADJUSTMENT, MODIFICATION OR REPAIR (OR ATTEMPT TO DO SO) MADE TO THE ITEM OF GOODS BY ANYONE OTHER THAN INNERVATION;
7.3.2 FAILURE TO USE THE ITEM OF GOODS IN ACCORDANCE WITH ITS OPERATING INSTRUCTIONS;
7.3.3 EXTERNAL FACTORS AFFECTING THE ITEM OF GOODS, INCLUDING FORCE MAJEURE OR FAILURE OR FLUCTUATION OF ELECTRICAL POWER;
7.3.4 NEGLIGENCE, THEFT, VANDALISM, ACCIDENTS OR ABNORMAL OPERATING CONDITIONS;
7.3.5 FAIR WEAR AND TEAR, BUT SUBJECT TO CLAUSE 7.1(c).
7.4 Innervation warrants that Innervation's services –
7.4.1 will be performed and completed in a timely manner and Innervation will give You timely notice of any unavoidable delay in the performance of those services;
7.4.2 will be performed in a manner and quality that persons are generally entitled to expect, and should Innervation fail to meet these standards, You must promptly notify Innervation in writing (by delivery, post, fax or e-mail to the address in clause 16) describing the failure and Innervation will, at its option (exercised reasonably), remedy any failure in the quality of the Warranties shall prove to be untrue services performed or misleadingrefund You a reasonable portion of any price You paid for those services, the Sellers shall, without prejudice to any other right or remedy which may be available having regard to the Buyer, pay to the Buyer (or to the relevant member extent of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingfailure.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Innervation Agreement
Warranties. 8.1 9.1 Each of the Specified Shareholders warrants to the Buyer as at the date of this agreement in the terms of the Title Warranties, but only in respect of itself and/or its Shares. The Sellers represent and Warrantors warrant jointly and severally to the Buyer in the terms set out in Schedule 5 of the Warranties and each party acknowledges that the terms Tax Warranties as at the date of Schedule 5 and this clause 8 are in the circumstances fair and reasonableagreement, save as Disclosed.
8.2 9.2 The Warranties are given subject shall be deemed repeated by each of the Warrantors immediately before Completion by reference to matters fullythe then existing facts and circumstances, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘save as Disclosed’) but no other .
9.3 No information of which the Buyer Buyer, its agents or advisers has actual, actual or constructive or imputed knowledge and no investigation shall affect or enquiry made by limit any Claim or on behalf claim for breach of a Tax Warranty or operate to reduce any amount recoverable thereunder.
9.4 Subject always to clause 10, the Buyer shall modify not bring any Claim or discharge claim for breach of any Tax Warranty in respect of any matter or thing properly Disclosed to it or any Claim in respect of which it has actual knowledge as at the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludeddate hereof.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 9.5 Each of the Warranties is a separate representation or warranty given independently from and shall not be restricted in its extent or application limited by the terms of reference to any of the other Warranties or by any other term others of this Agreementthem nor anything else contained in the Transaction Documents.
8.5 Each of 9.6 The Warrantors and the Sellers undertakes with the Buyer that -
(a) each of the Warranties Company shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately promptly disclose to the Buyer in writing any matter or thing which becomes known to it any of them before Completion and Completion, which gives riseis or could reasonably be considered to be a breach of or render inaccurate or misleading the Warranties, Title Warranties or might give rise, to a claim under the Tax Warranties or which would materially affect is or could reasonably be considered to be a breach of the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreementcovenants contained in clause 8.
8.6 If any 9.7 In the absence of the Warranties shall prove to be untrue or misleadingfraud, the Sellers shall, without prejudice to any other right or remedy each Warrantor irrevocably waives all rights and claims which he may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the against each Target Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true its officers and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of employees relating to any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by it or any director, officer of its officers or employee of the Company for the purpose of assisting the Sellers employees to such Warrantors to enable him to give any of the Warranties or and/or to prepare the Disclosure LetterLetter and/or to assume any of the obligations assumed or to be assumed by it under or pursuant to any of the Transaction Documents.
9.8 The only warranties given in relation to tax are the Tax Warranties, and the Title Warranties and the Warranties shall not be deemed to be given in relation to tax.
9.9 Each of the Buyer and TST warrants to the Specified Shareholders as at the date of this agreement that:
(a) it is duly incorporated in its jurisdiction of organisation;
(b) it has full power and authority to enter into and perform this agreement and each of the other Transaction Documents without the consent or approval of any third party (including its shareholders) and the provisions of this agreement and each of the other Transaction Documents will, when executed, constitute valid and binding obligations on it, in accordance with their respective terms;
(c) the execution and delivery of, and the performance by it of its obligations under, this agreement and each of the other Transaction Documents do not and will not:
(i) conflict with or result in a breach of any provision of its memorandum or articles of association or by-laws or any similar constitutional document, or any agreement binding on it; or
(ii) result in a breach of any order, judgment or decree of any court or Governmental Entity to which it is a party or by which it is bound;
(d) save as expressly provided in the Transaction Documents, all Permits or filings with any Governmental Entity and all agreements of any other person which are necessary for it, or the relevant member of the Buyer's Group, to obtain in order to enter into and perform its obligations under this agreement and each of the other Transaction Documents in accordance with their respective terms have been unconditionally obtained in writing; and
(e) there are no:
(i) judgments, orders, injunctions or decrees of any Governmental Entity or court or arbitration tribunal outstanding against or affecting any member of the Buyer's Group;
(ii) law suits, actions or proceedings pending or, to the knowledge of the Buyer, threatened against or affecting any member of the Buyer's Group; or
(iii) investigations by any Governmental Entity which are pending or threatened against any member of the Buyer's Group; and which, in any such case, will have an adverse effect on its ability or the ability of the relevant member of the Buyer's Group to execute and deliver, or perform, its obligations under this agreement or any of the other Transaction Documents.
9.10 TST warrants to the Specified Shareholders that the Buyer is a wholly owned subsidiary of it.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Thestreet, Inc.)
Warranties. 8.1 The Sellers represent With the exception of any goods which have been personalised at the Customer’s request, goods which are sold via the Web Site may be exchanged or refunded under the terms and warrant jointly conditions of this Agreement and severally subject to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term applicable law of this Agreement.
8.5 Each 6.1. The Customer’s right to change his/her mind The Customer may from the date on which he/she places an Order cancel that Order in respect one or more of the Sellers undertakes goods that are the subject of that Order and request reimbursement for same subject to provisions set out below. If the Customer wishes to cancel an Order in respect of certain good(s), he/she must notify the Vendor of such intention within 15 (fifteen) days of receiving all the goods that are the subject of that Order. The Customer must inform the Vendor of its intention to cancel an Order by making a clear statement. If the Customer wishes to cancel an Order, the Customer may use the form on Contact or complete the Model Cancellation Form attached at Appendix 1 and post or email it to the Vendor at the addresses given below in article 10. The Customer’s cancellation of his/her Order shall only be taken into consideration provided that the goods for which the Customer is requesting reimbursement from the Vendor have been returned to the Vendor without undue delay and in any event within 15 (fifteen) days from the day on which the Customer communicated its intention to return and in keeping with the Buyer terms and conditions which are set out in article 6.3 below. Should this be the case, the Vendor shall reimburse the Customer by the same means of payment that -
(a) each the Customer used for the initial transaction unless expressly agreed otherwise. In any event, the Customer will not incur any fees as a result of the Warranties shall remain true and accurate on each day up to and including reimbursement. The Vendor shall, within 14 (fourteen) days of receiving the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives risegoods, or might give riseif earlier within 14 (fourteen) days of the Customer providing evidence that the goods have been returned, or where no goods have been supplied, within 14 days of being notified of the Customer’s decision to cancel, reimburse the Customer the total amount paid for the rejected goods, as well as the least expensive outbound shipping and delivery costs in respect of those rejected goods. If the goods returned proof to be defect or in any other way have a claim under the Warranties or which would materially affect the willingness lesser value other than from what may be expected of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any general inspection of the Warranties shall prove to be untrue or misleadinggoods, the Sellers shall, without prejudice to any other right or remedy which may be available to consumer is liable and shall pay compensation equaling the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the lost value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadinggoods.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Terms and Conditions of Sale
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) The Parties each expressly acknowledge that the plant Thapsia Garganica L. and the Product may be toxic and can, amongst other things, cause irritation and damage to the skin upon contact. Thapsibiza shall be responsible for ensuring that individuals retained by Thapsibiza to obtain the Product shall be fully informed of the Warranties potentially toxic nature of the plant Thapsia Garganica L. and the Product, and shall remain true provide appropriate instructions and/or protective garment(s) to such individuals regarding the safe handling of the plant Thapsia Garganica L. and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; andProduct.
(1) THE PARTIES EACH AGREE THAT GENSPERA SHALL NOT BE RESPONSIBLE FOR ANY INJURY OR DAMAGE TO THAPSIBIZA AND/OR ANY INDIVIDUAL RETAINED BY THAPSIBIZA REGARDING OBTAINING THE PRODUCT AND/OR THE HANDLING OF THE PLANT THAPSIA GARGANICA L. AND/OR THE PRODUCT.
(2) THE PARTIES EACH AGREE THAT ONCE THE PRODUCT IS ACCEPTED BY A CARRIER FOR SHIPMENT TO GENSPERA, ANY AND ALL LIABILITY REGARDING ANY INJURY OR DAMAGE RESULTING FROM THE HANDLING OF THE PRODUCT SHALL BE THE SOLE AND EXCLUSIVE RESPONSIBILITY OF GENSPERA.
(b) it shall immediately disclose Except as provided in this clause, Thapsibiza makes no warranty, express or implied, with respect to the Buyer Products covered by this Agreement. Claims for shortages must be presented in writing within fifteen (15) days after receipt of shipment. All other claims must be presented in writing within forty-five (45) days after receipt of shipment. Except as provided in this clause, Thapsibiza shall not be liable under any matter which becomes known to it before Completion and which gives risecircumstances for consequential, indirect or might give rise, to a claim under the Warranties special damages or which would materially affect the willingness for damages resulting in any way from faulty or improper use of a prudent purchaser for value to purchase the Shares on the terms of this AgreementProducts.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 3.1 The Sellers represent Company and warrant jointly and each of the Existing Shareholders severally warrants to the Buyer Investor that each Warranty is true, accurate and not misleading in any material respect as at the terms set out date of this Agreement, and that such Warranties shall be deemed repeated on the Tranche 1 Subscription Date and the Tranche 2 Subscription Date with reference to the facts and circumstances in Schedule 5 each case then prevailing.
3.2 The Company and each party of the Existing Shareholders acknowledges that the terms of Schedule 5 and Investor is entering into this clause 8 are Agreement in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or reliance on behalf each of the Buyer shall modify or discharge Warranties which has also been given as a representation and with the Sellers’ liability under intention of inducing the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate Investor to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered enter into this Agreement.
8.4 3.3 Each of the Warranties is a separate representation qualified by matters fairly and specifically disclosed in the Disclosure Letter corresponding to such Warranty as at the date of this Agreement, and the Company and the Existing Shareholders shall be entitled to update the Disclosure Letter if they become aware that any event has occurred or warranty and shall not be restricted matter has arisen which results or may result in its extent or application by the terms of any of the other Warranties being untrue, inaccurate or misleading in any material respect as at the Tranche 1 Subscription Date or Tranche 2 Subscription Date (as applicable).
3.4 Each Warranty is to be construed separately and independently and (except where this Agreement provides otherwise) is not limited by any other term another provision of this AgreementAgreement or another Warranty.
8.5 Each 3.5 A reference in Schedule 9 of this Agreement or the Disclosure Letter to a person's knowledge, information, belief or awareness is deemed to include knowledge, information, belief or awareness the person would have had if the person had made reasonable enquiries of persons of whom he or she should reasonably have enquired.
3.6 Except for claims in respect of a breach of Warranty arising as a result of fraudulent, dishonest or negligent conduct on the part of the Sellers undertakes Company or the relevant Existing Shareholder:
3.6.1 the aggregate liability of each Existing Shareholder for all claims pursuant to the Warranties and the SPA Warranties shall not exceed the amount set opposite his or her name in column (4) of Schedule 1 with respect to claims made from and including the Buyer that -Tranche 1 Subscription Date;
(a) each 3.6.2 the aggregate liability of the Company for all claims pursuant to the Warranties shall remain true and accurate on each day up not exceed:
(i) (pound)1,500,000 with respect to claims made from and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference up to the Completion Tranche 1 Subscription Date;
(ii) (pound)2,000,000 with respect to claims made from and including the Tranche 1 Subscription Date (subject to fulfilment by the Investor of its obligations under clause 4.1.1 of this Agreement) up to the Tranche 2 Subscription Date; and
(biii) it shall immediately disclose (pound)9,000,000 with respect to claims made from and including the Buyer in writing any matter which becomes known Tranche 2 Subscription Date (subject to it before Completion fulfilment by the Investor of its obligations under clauses 4.3.1 and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms 4.3.3 of this Agreement.);
8.6 If 3.6.3 neither the Company nor the Existing Shareholders (taken as a whole) shall be liable in respect of a claim for breach of Warranty or, in the case of the Existing Shareholders only, any of the SPA Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with unless the amount of all costs and expenses the claim exceeds (including legal and other professional fees and expensespound)50,000; and
3.6.4 unless the Investor's discovery of the breach of the Warranty is delayed to more than two years after the date of this Agreement (in the case of the Warranties given on the date hereof), the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by Tranche 1 Subscription Date (in the Buyer (or any member case of the Buyer’s GroupWarranties deemed repeated on the Tranche 1 Subscription Date) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each Tranche 2 Subscription Date (in the case of the Sellers hereby waives any right which it may have Warranties deemed repeated on the Tranche 2 Subscription Date) as a result of fraudulent, dishonest or negligent conduct on the part of the Company or the relevant Existing Shareholder, neither the Company nor an Existing Shareholder shall be liable in respect of any misrepresentationa claim for breach of a Warranty unless he, inaccuracy she or omission in or from any information or advice supplied or it has been given by any director, officer or employee written notice of the Company for claim within two years of the purpose date of assisting this Agreement (in the Sellers to give any case of the Warranties given on the date hereof) the Tranche 1 Subscription Date (in the case of the Warranties deemed repeated on the Tranche 1 Subscription Date) or the Tranche 2 Subscription Date (in the case of the Warranties deemed repeated on the Tranche 2 Subscription Date) (except that in relation to prepare the Disclosure LetterTax Warranties this period shall be six years from the date of this Agreement, the Tranche 1 Subscription Date or the Tranche 2 Subscription Date (as applicable)).
Appears in 1 contract
Sources: Subscription and Shareholders Agreement (Seachange International Inc)
Warranties. 8.1 5.1 The Sellers represent Purchaser has entered into this Agreement and warrant jointly proposes to acquire the Shares on the faith of the Warranties.
5.2 In particular and severally without prejudice to the Buyer in generality of sub-clause 5.1 the terms set out in Schedule 5 Vendors hereby warrant and each party acknowledges represent to the Purchaser that the terms of Schedule 5 recitals to this Agreement and this clause 8 the Warranties are at the date hereof and will at Completion be true and accurate in the circumstances fair and reasonableall respects.
8.2 5.3 The Purchaser shall not be entitled to claim that any fact renders any of the Warranties are given subject untrue or misleading or caused them to matters fully, be breached if it has been fully fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope Purchaser in the Disclosure Letter (‘Disclosed’) but no other information Letter. 16
5.4 The Vendors hereby covenant and undertake to the Purchaser that, if after the date hereof it shall be found that any matter the subject of which the Buyer has actuala Warranty was not as warranted then, constructive or imputed knowledge and no investigation or enquiry made by or on behalf notwithstanding any further right of the Buyer shall modify or discharge Purchaser hereunder in respect of such breach of Warranty, if the Sellers’ liability under effect thereof is that:-
5.4.1 the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms value of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 asset belonging to the date Company is less than its value would have been had there been no breach of this Agreement were a reference Warranty; or
5.4.2 any asset represented as belonging to the Completion DateCompany does not so belong; andor
(b) 5.4.3 the Company has incurred or is under any liability or contingent liability which it would not have incurred or been under had there been no breach of Warranty; then the Vendors shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, demand pay to the Buyer Purchaser (or or, if so requested by the Purchaser, to the relevant member of the Buyer’s GroupCompany) on demand -
(a) an amount equal to the amount by which the value of the Shares net assets of the Company is less than it would have been had there been no such breach of Warranty been true and not misleading; orany such payment made by the Vendors shall be taken into account in assessing the damages of the Purchaser in connection with, arising out of or resulting from any such breach of Warranty.
(b) 5.5 No claim by the Purchaser under the provisions of this Clause 5 shall be prejudiced nor shall the amount necessary of any such claim be reduced in consequence of any information relating to put the Company which may at any time have come to the knowledge of the Purchaser or any of its advisers (other than information contained in the Disclosure Letter and any annexure thereto) and it shall not be a defence to any claim against the Vendors that the Purchaser knew or ought to have known or had constructive knowledge of any information (other than information contained or supplied as aforesaid) relating to the circumstances giving rise to such claim.
5.6 The Warranties are separate and independent and save as expressly provided in this Agreement or in the Disclosure Letter shall not be limited by reference to any other paragraph or anything in this Agreement and such Warranties shall remain in full force and effect notwithstanding Completion.
5.7 The Vendors shall procure that prior to Completion the Purchaser, its agents, accountants and solicitors are given promptly on request all such facilities and information regarding the business, assets, liabilities, contracts and affairs of the Company and any member of the Buyer’s Group into documents of title and other evidence of ownership of its assets as the position it would have been Purchaser may reasonably require.
5.8 The Vendors undertake (in had such Warranty been true and not misleading; together the event of any claim being made against any of them in connection with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member sale of the Buyer’s GroupShares to the Purchaser) not to make any claim against the Company, or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each a director or an employee of the Sellers hereby waives Company, on whom any of them may have relied before agreeing to any term of this Agreement or authorising any statement in the Disclosure Letter but so that this shall not preclude any Vendor from claiming against:-
5.8.1 any other Vendor under any right of contribution or indemnity to which it he may have in respect of be entitled; and
5.8.2 any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for on whom they may have relied if they have been fraudulent; and (each Vendor hereby agrees to consent to the purpose grant of assisting the Sellers injunctive relief to give any restrain a breach of the Warranties or undertaking contained in this sub-paragraph if requested by the Purchaser so to prepare the Disclosure Letterdo.
Appears in 1 contract
Sources: Share Purchase Agreement (Parexel International Corp)
Warranties. 8.1 The Sellers represent and warrant 6.1 Each of the Vendors jointly and severally warrants to the Buyer Purchaser for the benefit of the Purchaser, its permitted successors and permitted assigns that, as at the date of this Agreement, the Warranties are true and accurate in all respects and not misleading. For this purpose only, any reference (whether express or implied) in a Warranty (i) to "the terms set out in Schedule 5 date of this Agreement" shall also be construed as a reference to "the date of Completion", and each party acknowledges that (ii) to "the terms date of Schedule 5 and Completion" shall also be construed as a reference to "the date of this clause 8 are in the circumstances fair and reasonableAgreement".
8.2 The 6.2 Each of the Warranties are is given subject to the matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no Letter.
6.3 Each of the Warranties shall be construed separately and independently of each other information of which the Buyer has actual, constructive or imputed knowledge and no Warranty shall be limited or restricted by reference to or inference from any other Warranty or other provision of this Agreement save for the limitations set forth in Schedule 8 and Clause 11.3.
6.4 The Warranties shall remain in full force and effect after Completion and the Purchaser's rights and remedies in respect of any breach of the Warranties or under any other provision of this Agreement shall not be regarded as modified or varied by Completion, by any investigation or enquiry (including without limitation any due diligence investigation) made by or on behalf of the Buyer shall modify Purchaser in connection with the purchase of the Shares or discharge any information or documents supplied to it (save as fairly disclosed in the Sellers’ liability under Disclosure Letter), by the Purchaser failing to exercise or delaying the exercise of any of its rights or remedies or by any other event or matter whatsoever except a specific and duly authorised written waiver or release by the Purchaser.
6.5 Where any of the Warranties in any way and is qualified by the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In phrase "so far as the Vendors are aware" or any similar phrase, the Vendors shall be deemed to have made reasonable enquiry with regard to the subject matter of such Warranty.
6.6 Any payment made pursuant to the Warranties relate by the Vendors shall be deemed to matters be an adjustment to the Consideration.
6.7 The Vendors each undertake (for themselves and any nominees) that so long (after Completion) as they remain the registered holder of factany of the Shares they will:
(a) not represent themselves as the beneficial owners of any of the Shares;
(b) exercise all powers, rights and privileges vested in the registered holder of the Shares only in accordance with the written directions of the Purchaser; and
(c) hold the Shares and any dividends or other distributions of profits or assets in respect thereof in trust for the Purchaser.
6.8 Each of the Vendors hereby waives all and any claims which they shall constitute representations (or any of them) have or may have against the Company and/or any of the officers, employees, servants or agents of the Company in reliance upon respect of any information or opinions supplied or omitted to be supplied to any of the Vendors in connection with any of the Warranties, any Supplemental Agreement (including but not limited to the Tax Deed) and/or the compilation and/or preparation of the Disclosure Letter or on which the Buyer has entered Vendors (or any of them) may otherwise have placed reliance before entering into this Agreement.
8.4 Each 6.9 The provisions of Schedule 8 (Limitations) shall apply.
6.10 The Purchaser represents and warrants to the Warranties is a separate representation or warranty and shall not be restricted Vendors in its extent or application by the terms of any of the other Warranties or by any other term of this AgreementSchedule 11. Not applicable.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (New Era of Networks Inc)
Warranties. 8.1 6.1 The Sellers represent Company hereby represents, warrants and warrant jointly and severally undertakes to each of the Buyer Subscribers in the terms set out in Schedule 5 5.
6.2 The Company hereby represents, warrants and undertakes to each party of the Subscribers that the Warranties are true and correct in all material respects and not misleading in any material respects as at the date of this Agreement and will continue to be so up to and including the time of Completion.
6.3 The Company hereby agrees and acknowledges that each of the terms of Schedule 5 and Subscribers is entering into this clause 8 are Agreement in reliance on the circumstances fair and reasonableWarranties.
8.2 6.4 The Warranties are given subject Company undertakes to matters fully, fairly and accurately disclosed in sufficient detail notify the Subscribers as soon as reasonably practicable on any matter or event coming to enable the Buyer its attention prior to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of Completion which the Buyer has actual, constructive shows or imputed knowledge and no investigation or enquiry made by or on behalf could reasonably be expected to cause any of the Buyer shall modify Warranties to be or discharge the Sellers’ liability under the Warranties to have been untrue or misleading in any way and material respect or which may have any material adverse effect on the provisions of section 6(2) assets or liabilities of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedCompany.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 6.5 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other Warranty and, except where expressly or otherwise stated, no provision in any Warranty shall govern or limit the extent or application of any other provision in any Warranty.
6.6 The Warranties shall survive Completion and the rights and remedies of the Subscribers in respect of any breach of the Warranties shall not be affected by Completion or by the Subscribers rescinding, or failing to rescind this Agreement, or failing to exercise or delaying the exercise of any right or remedy, or by any other event or matter whatsoever, except a specific and duly authorised written wavier or release and no single or partial exercise of any right or remedy shall preclude any further or other exercise.
6.7 The Company undertakes in relation to any Warranty which may be available refers to the Buyerknowledge, pay information or belief of the Company that it has made full enquiry into the subject matter of that Warranty and that it does not have the knowledge, information or belief that the subject matter of that Warranty may not be correct, complete or accurate.
6.8 Each of the Subscribers hereby represents, warrants and undertakes to the Buyer (or to the relevant member of the Buyer’s Group) on demand -Company that:
(a) he or it has the amount by right, power and authority to enter into and perform this Agreement which constitutes legal, valid and binding obligations on the value of the Shares is less than it would have been had such Warranty been true and not misleading; orSubscriber in accordance with its terms;
(b) he or it has sufficient financial resources necessary for the amount necessary to put the Company and any member subscription of the Buyer’s Group into the position it would have been in had such Warranty been true Convertible Bonds; and
(c) this Agreement constitutes valid, binding and not misleading; together with the amount enforceable obligations of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly he or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingit.
8.7 6.9 Each of the Sellers Subscribers hereby waives any right which it may have agrees and acknowledges that the Company is entering into this Agreement in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given reliance on the warranties made by any director, officer or employee each of the Company for the purpose of assisting the Sellers to give any Subscribers under Clause 5.8.
6.10 Each of the Warranties Subscribers further agrees and acknowledges that prior to the listing of the Shares on GEM, the Group shall be permitted to declare, make or pay to prepare its shareholders a special dividend which, subject to compliance with all laws and regulations, may be equivalent to the Disclosure Lettermaximum possible amount of the retained earnings of the Group.
Appears in 1 contract
Warranties. 8.1 7.1 The Sellers represent Company warrants and warrant jointly and severally undertakes to the Buyer Investors in the terms set out in Schedule 5 of the Warranties and each party acknowledges that the terms of Schedule 5 and Investors are entering into this clause 8 are agreement in reliance on the circumstances fair and reasonableWarranties.
8.2 The Warranties are given subject to matters fully, fairly 7.2 Each Warranty is separate and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no independent of each other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty Warranty and shall not be limited or restricted in its extent by reference to or application by inference from the terms of any of the other Warranties Warranty or by any other term provision of this Agreement.
8.5 7.3 Each of the Sellers undertakes Warranty is given with the Buyer that -
(a) each of the Warranties shall remain true and accurate effect on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a and shall be deemed repeated immediately before Admission of the Subscription Shares, in each case by reference to the Completion Date; andfacts and circumstances then existing.
(b) it shall immediately disclose to the Buyer in writing 7.4 The Company will not do, allow or procure any matter act or omission before Admission which becomes known to it before Completion and which gives rise, would or might give rise, constitute or lead to a claim under the Warranties or which would materially affect the willingness breach of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or cause any of the Warranties to prepare become untrue, inaccurate or misleading in any respect if the Disclosure LetterWarranties were repeated at any time before Admission of the Subscription Shares by reference to the facts then existing.
7.5 The Company undertakes to the Investors to notify the Investors in writing promptly in the event that the Company becomes aware of any matter which constitutes, or might reasonably be expected to constitute or lead to, a breach of any Warranty or any other provision of this agreement, or which would or may reasonably be expected to result in any of the Warranties being breached at any time before Admission if the Warranties were repeated at any time before Admission by reference to the facts then existing.
7.6 If, at any time before Admission of the Subscription Shares, any of the Investors receives a notice pursuant to clause 7.5 or otherwise becomes aware that any of the Warranties is, has become, or is likely to become untrue, inaccurate or misleading in any material respect or of any matter which constitutes, or might reasonably be expected to constitute or lead to, a material breach of any other provision of this agreement, or which would or may reasonably be expected to result in any of the Warranties becoming untrue, inaccurate or misleading in a material respect at any time before Admission of the Subscription Shares if the Warranties were repeated at any time before Admission of the Subscription Shares by reference to the facts then existing, the Investors may (without prejudice to their right to terminate this agreement pursuant to clause 8) require the Company, at its own expense, to make, or cause to be made, such announcement as the Lead Investors (on behalf of themselves and the Investors) shall, acting reasonably and in good faith and, so far as is practicable, after consultation with the Company, consider necessary.
7.7 The Warranties shall remain in full force and effect notwithstanding completion of the Subscription and completion of all other matters and arrangements referred to in or contemplated by this agreement.
7.8 The Company shall not be liable in respect of any claim for breach of Warranty unless written notice of the claim is served on the Company in accordance with clause 16 of this agreement not later than the publication date of the Company’s audited accounts for the year ending 31 December 2010.
Appears in 1 contract
Sources: Subscription Agreement
Warranties. 8.1 The Sellers represent With the exception of any goods which have been personalised at the Customer’s request, goods which are sold via the Web Site may be exchanged or refunded under the terms and warrant jointly conditions of this Agreement and severally subject to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term applicable law of this Agreement.
8.5 Each 6.1. The Customer’s right to change his/her mind The Customer may from the date on which he/she places an Order cancel that Order in respect one or more of the Sellers undertakes with goods that are the Buyer subject of that -
(a) each of Order and request reimbursement for same subject to provisions set out below. If the Warranties shall remain true and accurate on each day up Customer wishes to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have cancel an Order in respect of any misrepresentationcertain good(s), inaccuracy he/she must notify the Vendor of such intention within 15 (fifteen) days of receiving all the goods that are the subject of that Order. The Customer will then have 15 (fifteen) days from her/his notification to cancel, to return at her/his own expense, the products ordered. The Customer must inform the Vendor of its intention to cancel an Order by making a clear statement. If the Customer wishes to cancel an Order, the Customer may use the form on Contact Us or omission complete the Model Cancellation Form attached at Appendix 1 and email it to service.client@quiksilver-‐▇▇▇▇▇▇.▇▇▇. The Customer’s cancellation of his/her Order shall only be taken into consideration provided that the goods for which the Customer is requesting reimbursement from the Vendor have been returned to the Vendor under the terms and conditions set out in article 6.3 below. Should this be the case, the Vendor shall reimburse the Customer by the same means of payment that the Customer used for the initial transaction unless expressly agreed otherwise, as soon as Quiksilver has received or from any information collected the goods back or advice the consumer has supplied or given by any directorevidence of having sent back the goods, officer or employee whichever of the Company two is the earliest. In any event, the Customer will not incur any fees as a result of the reimbursement. The Vendor shall reimburse the Customer within 14 (fourteen) days of receiving the goods, or if earlier within 14 (fourteen) days of the Customer providing evidence that the goods have been returned, or where no goods have been supplied, within 14 days of being notified of the Customer’s decision to cancel. The Vendor will reimburse the Customer the total amount paid for the purpose rejected goods, as well as the least expensive outbound shipping and delivery costs in respect of assisting those rejected goods. The additional shipping charges related to the Sellers Customer’s choice of delivery option other than the standard delivery will not be subject to give any refund. The Vendor may make a deduction from the reimbursement for loss in value of any goods supplied if the Warranties or to prepare loss is the Disclosure Letterresult of unnecessary handling by the Customer.
Appears in 1 contract
Sources: Terms and Conditions of Sale
Warranties. 8.1 9.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -Purchaser that:
(a) except as fully and fairly disclosed to the Purchaser in the Disclosure Letter, each of the Warranties shall remain statements set out in schedule 4 (the Warranted Statements) is and will at Completion be true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Dateaccurate; and
(b) it shall immediately disclose all information contained or referred to in the Disclosure Letter is true and accurate.
9.2 Each of the Warranted Statements is separate and independent and, except as expressly provided to the Buyer contrary in writing any matter which becomes known to it before Completion and which gives risethis agreement, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -is not limited:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleadingreference to any other Warranted Statement; or
(b) by any other provision of this agreement or any provision of the amount necessary Tax Deed.
9.3 Except in relation to put matters fully and fairly disclosed in the Company and Disclosure Letter, none of the Warranties shall be treated as qualified by any actual, imputed or constructive knowledge on the part of any member of the Buyer’s Purchaser's Group into or any agent or adviser of any such member and no such knowledge shall prejudice any Warranty Claim or operate so as to reduce any amount recoverable.
9.4 Without prejudice to any other remedy available to the position Purchaser or its ability to claim damages on any other basis which is available to it by reason of any of the Warranted Statements being untrue or inaccurate, if any of the Warranted Statements is untrue, or inaccurate, and the value of the Company or any of the assets of the Company is less than it would otherwise have been in had such Warranty been true at Completion as a result, the Sellers shall pay to the Purchaser on demand an amount equal to the resulting diminution of value and not misleading; together with the amount of all costs and expenses Losses (including legal and other professional fees and expensescosts) arising, incurred or suffered by the Company as a result of such Warranted Statement being untrue or inaccurate.
9.5 The Sellers shall promptly (and in any event before Completion) give notice to the Purchaser of any matter or circumstance arising after the date of this agreement and before Completion which results or would result or would be likely to result in any of the Warranted Statements being materially (to such extent that would constitute a Warranty Claim) untrue or inaccurate at Completion (and shall promptly, and in any event before Completion, give notice to the Purchaser of any matter or circumstance which becomes known to him after the date of this agreement and before Completion which results in any of the Warranted Statements being untrue or inaccurate as at the date of this agreement) and, if it does so:
(a) the Sellers, if and to the extent so requested by the Purchaser, shall use their best endeavours to prevent or remedy the relevant matter or circumstance before Completion so as to limit, to the fullest extent practicable, its effect or likely effect on the Purchaser and the Company;
(b) the Purchaser may elect not to complete the purchase of the Shares by giving notice to the Sellers; and
(c) if the Purchaser so elects:
(i) except for this subclause, clauses 1, 12, 13, 15, 16, 17.3, 17.4, 17.5, 17.6, 17.7, 17.8, 17.9, 18, 19 and 20 and the provisions of schedule 11, all the provisions of this agreement shall lapse and cease to have effect;
(ii) neither the lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or liabilities of any party in respect of damages for non-performance of any obligation under this agreement falling due for performance prior to such lapse and cessation; and
9.6 If the Purchaser becomes aware of a matter or circumstance which is likely to give rise to a Warranty Claim, the costs Purchaser shall give notice to the Sellers or the Sellers' Solicitors specifying that matter or circumstance in reasonable detail, and setting out such other facts as the Purchaser deems necessary, as soon as reasonably practicable after it becomes aware of management time and all other consequential losses whether directly that matter or indirectly arising) incurred directly or indirectly circumstance. Any failure by the Buyer (Purchaser to give notice as contemplated by this subclause in relation to any matter or circumstance shall not, for the avoidance of doubt, prevent the Purchaser from making any member of the Buyer’s Group) Warranty Claim arising from that matter or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of circumstance, but the Sellers hereby waives shall not be liable for any right which it may have Losses in respect of any misrepresentationsuch Warranty Claim to the extent that such Losses are increased, inaccuracy or omission are not reduced, as a result of such failure.
9.7 The Warranties and any Warranty Claim shall be subject to the limitations and other provisions set out in schedule 5.
9.8 Nothing in schedule 5 or from any information in the Disclosure Letter shall qualify or advice supplied or given by any director, officer or employee limit the liability of the Company for Sellers in relation to:
(a) any of those Warranted Statements set out in paragraphs 1.4 (Ownership of the purpose Shares), 1.13 (Insolvency) and 1.14 (Capacity and consequences of assisting sale) of schedule 4; or
(b) any Warranty Claim attributable to fraud, dishonesty or wilful concealment on the Sellers to give part of any of the Warranties Sellers or to prepare the Disclosure Letterany agent or adviser of any Seller.
9.9 Clause 9.8 applies notwithstanding clauses 9.1(a) and 9.7.
Appears in 1 contract
Sources: Share Purchase Agreement (Inyx Inc)
Warranties. 8.1 6.1 The Sellers represent and warrant Vendors hereby jointly and severally represent, warrant and undertake to the Buyer Purchasers and its successors in title (with the intent that the provisions of this Clause 6.1 shall continue to have full force and effect notwithstanding Completion) as follows:-
(a) they are currently, and shall on Completion be, the legal and beneficial owner of the Sale Shares (in the terms set out in Schedule 5 following proportion: 60% held by YANG Qi, 15% held by MAO Q▇▇▇ ▇▇ and each party acknowledges 25% held by WU Bing Wei), and that the terms Sale Shares represent, and shall on Completion represent, one hundred per cent. (100%) of Schedule 5 the issued and paid-up share capital of the Company;
(b) that they are or will on Completion be beneficially entitled to or is otherwise able to transfer their respective Sale Shares to the Purchaser and/or its nominee(s) together with all rights and benefits attaching thereto under this clause 8 Agreement;
(c) the Sale Shares are or will on Completion be free from any Encumbrances, and no other person has or shall have any rights of pre-emption over such Sale Shares;
(d) the Sale Shares are and shall have been authorised, validly issued, allotted and fully paid-up; and
(e) other than the Finder’s Fee Agreement attached as A▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Vendors or any Group Company have agreed to provide a finder’s fee, brokerage commission or similar payment to a third party. No party has been involved in the circumstances fair active negotiations relative to this Agreement and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in transactions contemplated hereby have been carried out by the Disclosure Letter (‘Disclosed’) but no other information Vendors directly with Purchaser without the intervention of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or any person on behalf of the Buyer shall modify Vendors in such manner as to give rise to any valid claim by any person against Purchaser, any Group Company or discharge any of the Sellers’ liability under Vendors for a finder’s fee, brokerage commission or similar payment.
6.2 The Vendors further warrant and undertake to and with the Warranties in any way and Purchaser (with the intent that the provisions of section 6(2this Clause 6.2 shall continue to have full force and effect notwithstanding Completion) that:
(a) all Warranties contained herein will be fulfilled and will be true and correct at Completion in all respects as if they had been given afresh at Completion; and
(b) in relation to any Warranty which refers to the knowledge, information or belief of the Law Vendors, that it has made due and proper enquiry into the subject matter of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedthat Warranty.
8.3 In so far as 6.3 The Vendors acknowledges that the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer Purchaser has entered into this Agreement.
8.4 Each Agreement in full reliance upon and on the basis of each of the Warranties is a separate representation or warranty and contained herein.
6.4 The Vendors shall not be restricted in its extent do, allow or application by the terms procure any act or omission before Completion which would constitute a breach of any of the other Warranties if they were given at Completion or which would make any of the Warranties inaccurate or misleading if they were so given.
6.5 In the event of it becoming apparent on or before Completion that the Vendors are in breach of any of the Warranties or by any other term of this Agreement, the Purchaser may, at its sole discretion, and without prejudice to all other rights and remedies availableto the Purchaser, rescind this Agreement by notice in writing to the Vendors. Upon termination of this Agreement under this Clause 6.5, the Purchaser shall be entitled to be indemnified and held harmless against all legal, accounting and other costs and expenses incurred by the Purchaser in connection with this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of 6.7 Save as expressly otherwise provided, the Warranties shall remain true be separate and accurate on each day up to independent and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a shall not be limited by reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms other provision of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 6.1 The Sellers represent Purchaser is entering into this agreement on the basis of, and warrant jointly and severally in reliance on, the Warranties.
6.2 The Vendor warrants to the Buyer Purchaser as at the date of this agreement in the terms of the Warranties.
6.3 The Purchaser acknowledges that save in the case of fraud or fraudulent misrepresentation on the part of the Vendor it's sole remedy for breach of Warranty shall be in damages and the Purchaser shall have no right to rescind this agreement provided that if at any time before Completion the Purchaser becomes aware that a Warranty has been breached (or would have been breached had the Warranties been repeated at Completion) then the Purchaser may either proceed to Completion (in which case the Purchaser shall waive its right to bring a Claim in respect of such matter) or may as its sole remedy by notice in writing to the Vendor elect to rescind this agreement in which case this agreement shall cease to have effect immediately after that date and time except for the provisions set out in Schedule 5 and each party acknowledges clause 2.3.
6.4 If at any time before or at Completion the Vendor becomes aware that a Warranty has been breached or would be breached had the terms of Schedule 5 and this clause 8 are Warranties been repeated at Completion it shall as soon as reasonably practicable notify the Purchaser in such detail in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail possession of the Vendor to enable the Buyer Purchaser to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf make a reasonable assessment of the Buyer shall modify situation for the purposes of clause 6.3.
6.5 Warranties stated to be given "so far as the Vendor is aware" or discharge "to the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) best of the Law Vendor's knowledge information and belief" or any similar such expression are deemed to be given after the Vendor has made all reasonable enquiries of Property the directors of the Company and its Subsidiary (Miscellaneous Provisions) but excluding ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇), ▇▇▇▇▇▇▇▇ are hereby excluded▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the actual (as opposed to deemed or imputed) knowledge of each of the Vendor's Solicitors and the auditors of the Company and its Subsidiary (but not further or otherwise).
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 6.6 Each of the Warranties is a separate representation and, unless otherwise specifically provided, is not limited by reference to any other Warranty or warranty any other provision in this agreement.
6.7 Unless specifically stated to the contrary in this agreement the rights and remedies of the Purchaser in respect of any breach of the Warranties and the Tax Covenant shall not be restricted affected by Completion, by any investigation made by it or on its behalf into the affairs of the Company or its Subsidiary, by its failing to exercise or delaying the exercise of any right or remedy, or by any other event or matter, except a specific and duly authorised written waiver or release, and no single or partial exercise of any right or remedy shall preclude any further or other exercise.
6.8 With the exception of the matters Disclosed, nothing the Purchaser knows, or which is a necessary consequence of facts within its knowledge, shall prevent or prejudice a Claim. Any document contained in its extent the Disclosure Bundle shall only constitute a disclosure of the information contained in that document and not of any other matter or application by circumstances relating to or conclusion which might be drawn from the terms subject matter of that document which might give rise to a breach of any of the Warranties unless and to the extent that such other Warranties matter circumstances or by any other term of this Agreementconclusion is Disclosed expressly in the Disclosure Letter itself.
8.5 Each of 6.9 If the Sellers undertakes with Purchaser is liable to pay Tax on any sum paid by the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 Vendor to the date Purchaser as a result of this Agreement were a reference Substantiated Claim the amount so payable by the Vendor shall be increased by such amount as will ensure that (after payment of such Tax) the net receipt to the Completion Date; and
(b) it shall immediately disclose to Purchaser is the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than same as it would have been had such Warranty been true and were the payment by the Vendor not misleading; or
(b) subject to Tax in the amount necessary to put the Company and any member hands of the Buyer’s Group Purchaser.
6.10 Clause 6.9 shall not apply to any Tax that the Purchaser is liable to pay to the extent that such Tax has already been taken into account in quantifying the position it liability of the Vendor under the Substantiated Claim.
6.11 If the Purchaser assigns the benefit of this agreement or any part thereof, the Vendor shall not be liable pursuant to clause 6.9, save to the extent that the Vendor would have been in so liable had no such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingassignment occurred.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 The Sellers represent a. Seller warrants that commodities delivered under the Contract meet Seller’s specifications in accordance with the Contract description. Seller warrants that commodities delivered under the Contract are of the grade indicated. Seller does not guarantee any other specifications not set forth in this Contract. Seller’s weights and warrant jointly measures are to govern in any dispute or settlement thereof. THIS WARRANTY IS BUYER'S EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, COVENANTS OR REPRESENTATIONS. SELLER MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THOSE SPECIFICALLY STATED IN THIS PARAGRAPH. THE IMPLIED WARRANTY OR FITNESS FOR A PARTICULAR PURPOSE IS HEREBY DISCLAIMED. IN NO EVENT WILL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR SPECIFIC PERFORMANCE.
b. Buyer represents and severally warrants that it is to be aware of all economic sanctions laws, anti-boycott laws and trade restrictions imposed by the U.S., U.N. and EU, as maybe amended from time to time, and warrants that it will comply with them as applicable in relation to the Buyer performance of this Contract. This warranty refers particularly, but not exclusively, to the nominated vessel, to whomever may own, control, operate or have chartered the vessel, to Buyer’s documentary instructions, to any intervening banks, and in general to any other person, company or entity involved in the performance of this Contract. Buyer represents and warrants that Buyer has read this Contract in its entirety and understands its terms set out and legal effect, and that Buyer will not export the DDGS (“Product”) purchased hereunder, or allow the Product to be exported, to any country with a functioning regulatory system in Schedule 5 place that grants authorizations that has not approved the import of Product containing genetically modified organisms. Buyer shall indemnify Seller and each party acknowledges that the terms of Schedule 5 and this clause 8 are hold Seller fully harmless in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fullyevent of loss or damage suffered by Seller, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information its principals or its affiliates, as a result of which the Buyer has actualany breach, constructive whether intentional or imputed knowledge and no investigation or enquiry made by or on behalf not, of the above mentioned warranties, economic sanctions laws, anti-boycott laws and/or trade restrictions by Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties persons, companies and entities employed, hired or contracted by Buyer. Nothing in this Contract is meant to require either party to take any other term action which is likely to place it or its affiliates in a position of this Agreement.
8.5 Each non-compliance with, or in contravention of the Sellers undertakes with above mentioned laws and restrictions. In particular, but without limitation, Seller shall at any time be entitled to reject or withdraw acceptance of any vessel nomination where the Buyer that -
(a) each acceptance of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference such vessel nomination would place Seller in Schedule 5 to the date a position of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives risewith, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleadingin contravention of, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the said laws and restrictions. Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had shall in such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingcases nominate a suitable fully contractual substitute vessel.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Contract
Warranties. 8.1 6.1. Subject to the following provisions, the Seller warrants that goods delivered pursuant to a Contract shall comply with all properties and characteristics expressly agreed in writing or to be customarily expected pursuant to the legal provisions under the substantive national laws applicable to the Seller at the time when risk passes to the Buyer. The Sellers represent Seller does not undertake any warranty in respect of defects caused by improper handling, wear and warrant jointly and severally tear, storage, any alteration of the goods by the Buyer or any use by the Buyer in a manner which adversely affects the performance of the goods or other acts or omissions of the Buyer or of third parties. The Seller shall not be obliged to notify the Buyer of the unsuitability of its instructions or specifications unless the Seller is aware of such unsuitability.
6.2. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES; WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR AN INTENTED PURPOSE OR PARTICULAR USE AND NON- INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
6.3. A delivery shall be deemed to have been effected in compliance with contractual agreements if any deviations in respect of quantity, grammage, thickness, size or width of reels of the goods delivered by the Seller to the Buyer do not exceed the agreed or customary tolerances. The quantity in respect of any delivery shall thereby be calculated based on the actual weight of the goods at the time of production and packaging. In the case of reels and uncounted sheets the weight shall apply gross for net; in the terms set out in Schedule 5 case of reels the wrappings, cores and each party acknowledges that the terms of Schedule 5 bungs and this clause 8 are in the circumstances fair and reasonablecase of sheets the wrappings shall be included in the weight. Irrespective of the above provisions, any quantity deviations which are common in the trade, negligible or technically unavoidable shall not be deemed defects.
8.2 6.4. The Warranties Buyer is obliged to inspect the delivered goods immediately upon receipt, however, in any case prior to processing the goods, as to any defects. If the goods do not comply with the agreed quality standards, processing must not commence before the Seller has approved thereof in writing. For claims in connection with defects, the following provisions shall apply:
a) in case of deviations in quantity (i.e. delivered quantity is larger or smaller than contracted quantity) the defects are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable be notified by the Buyer to understand their nature and scope the Seller forthwith, however, in any event within seven days after receipt of documents showing weight or quantity of the Disclosure Letter (‘Disclosed’delivered goods and/or after delivery;
b) but no other information in case of defects in quality which can be ascertained by visual inspection of the goods or the packaging or by sampling, the defects must be notified by the Buyer has actualto the Seller forthwith, constructive however, in any case within seven days after delivery;
c) in case of defects in quality which cannot be determined by visual inspection or imputed knowledge by sampling, the defects are to be notified by the Buyer to the Seller forthwith on detection, however, in any event within six months of delivery. Later notifications of defects/complaints cannot be accepted.
6.5. In case of papers used as component for tobacco products, papers applied for packing of food, in particular packaging applications for organoleptically sensitive products, and no investigation papers applied for packaging of pharmaceutical products, the Buyer is obliged to check the suitability of the goods before processing and forthwith notify the Seller in case of defects or enquiry made unsuitability.
6.6. When notifying a defect, the Buyer shall identify the goods clearly and include a list giving details of each defect claimed and provide the Seller with product samples and any other suitable documents to support such claim. Defective goods must be kept available for the Seller’s inspections for 14 days from the date of the notification and must not be returned to the Seller early. Any notification of a defect shall be in writing. If such notification or availability of defective goods for inspection by or on behalf the Seller are not effected in compliance with the above provisions, any and all warranty, damage and other claims of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby be excluded.
8.3 In so far as 6.7. Until the Warranties relate to matters facts of factthe case have been ascertained, they shall constitute representations in reliance upon which the Buyer has entered into this Agreementshall duly store the goods and, in the interest of both contracting parties, keep them insured to cover the purchase price. If it is suspected that the damage occurred during transport, the Buyer is further obliged to notify the forwarding agent (carrier) forthwith, however, in any case within the deadline provided in the forwarding contract.
8.4 Each 6.8. If the quantity of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application goods delivered by the terms Seller falls below customary or agreed tolerances (as applicable), the Seller’s sole obligation shall be to deliver additional goods to make up for any such deficiency.
6.9. Quality defects in the delivered goods shall be remedied by improvement or replacement of the defective item(s) free of charge. In the event that improvement or replacement is either impossible or would involve unreasonably high expenses for the Seller, the Buyer shall be entitled to a reduction of the price. Any claims in addition thereto, such as in particular claims for cancellation of the Contract, claims for damages or claims for substitute performance shall be excluded to the extent permitted by law.
6.10. Any legal presumption under applicable law to the effect that the goods were defective upon delivery shall be excluded.
6.11. Any warranty claims of the Buyer shall come under the statute of limitation seven months after the passing of risk. The duration of a delay in acceptance, if any, shall be included in such seven-months period.
6.12. The fulfilment of any warranty obligations of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties Seller shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose be subject to the Buyer in writing fulfilling any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingits Contractual obligations, in particular its payment obligations as agreed.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Sales Contracts
Warranties. 8.1 6.1 The Sellers represent Vendor hereby represents and warrant jointly and severally warrants to the Buyer in the terms set out in Schedule 5 and each party acknowledges Purchaser that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Vendor Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day in all material respects as at the date of this Agreement and will continue to be so up to and including the Completion Date time of Completion.
6.2 The liability of the Vendor in respect of any breach of any Vendor Warranties shall be limited as if provided in Clauses 6.3 to 6.7.
6.3 The Vendor shall not be liable for any express or implied reference claim in Schedule 5 to respect of the date of Vendor Warranties and/or under this Agreement were unless:
(1) the Vendor shall have received from the Purchaser a reference written notice of such claim specifying in reasonable details the event or default to which the claim relates and the nature of the breach and (if capable of being quantified at that time) the amount claimed, not later than the expiry of a period of three months after the Completion Date; and
(b2) it the aggregate amount of liability of the Vendor for all claims made in connection with the Vendor Warranties and/or this Agreement shall immediately disclose not exceed the amount of consideration actually received by the Vendor.
6.4 Notwithstanding any provision herein, the liability of the Vendor in connection with the Vendor Warranties and this Agreement shall cease on the expiration of three months after the Completion Date.
6.5 The Purchaser shall repay to the Buyer in writing Vendor an amount equal to any matter which becomes known sum paid by the Vendor to it before Completion and which gives rise, or might give rise, to a satisfy any claim under the Vendor Warranties and/or this Agreement which is subsequently recovered by or which would materially affect paid to the willingness Purchaser or the Company by any third party after deducting all reasonable costs and expenses incurred by the Purchaser and/or the Company arising from or incidental to the recovery of a prudent purchaser for value such amount from the third party.
6.6 The Vendor Warranties shall be actionable only by the Purchaser (or its permitted assignees or successors hereunder) and no other persons shall be entitled to purchase make any claim or take any action whatsoever against the Shares on Vendor under, arising out of, or in connection with any of the terms of Vendor Warranties and/or this Agreement.
8.6 If 6.7 The Purchaser shall immediately inform the Vendor in writing of any fact, matter, event or circumstance which comes to its notice whereby it has ascertained that the Vendor is or may become liable to make any payment under the Vendor Warranties and shall not settle or compromise such claim without the prior written consent of the Warranties shall prove to be untrue or misleadingVendor. At the request in writing by the Vendor, the Sellers shallPurchaser shall take such action as the Vendor may reasonably request to avoid, without prejudice to any other right dispute, resist, compromise or remedy defend the claim or liability for which the Vendor may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether become directly or indirectly arising) incurred directly liable or indirectly by responsible and the Buyer (Purchaser shall further render or any member cause to be rendered to the Vendor all such assistance as the Vendor may reasonably require in connection with the foregoing.
6.8 The Purchaser hereby represents the Vendor that the Purchaser Warranties are true and correct in all material respects at the date of this Agreement and that the Purchaser Warranties shall survive Completion.
6.9 The Purchaser hereby agrees that each of the Buyer’s Group) Purchaser Warranties shall be construed as a separate and independent representation and warranty and, except where expressly otherwise stated, no provision in any Purchaser Warranties shall govern or limit the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each extent of the Sellers hereby waives any right which it may have in respect application of any misrepresentation, inaccuracy or omission other provision in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure LetterPurchaser Warranties.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Cosmos Group Holdings Inc.)
Warranties. 8.1 12.1 The Sellers represent and warrant jointly and severally Seller hereby warrants to the Buyer Purchaser for itself and as trustee for each Purchaser Group Company that each Warranty and Tax Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Completion, the Seller is deemed to warrant to the Purchaser for itself and as trustee for each Purchaser Group Company that each Warranty and Tax Warranty that is marked with an asterisk in Schedule 5 or Schedule 6 (as the case maybe) is true, accurate and not misleading by reference to the facts and circumstances as at Completion. For this purpose only, where there is an express or implied reference in a Warranty or Tax Warranty that is marked with an asterisk to the “date of this Agreement”, that reference is to be construed as a reference to Completion.
12.2 The Warranties and Tax Warranties are qualified in accordance with clause 13.11 by the facts and circumstances fairly disclosed in the terms Disclosure Letter.
12.3 Where any statement set out in Schedule 5 and or Schedule 6 is expressed to be given or made to the best of the Seller’s knowledge or is qualified by reference to the Seller’s awareness or is qualified in some other manner having substantially the same effect, the Seller shall be deemed only to have knowledge of matters within the actual knowledge of each party acknowledges that the terms of person listed in Schedule 5 and this clause 8 are in the circumstances fair and reasonable3 or such knowledge as such persons would have had if they had made all reasonable enquiries.
8.2 12.4 The Warranties Purchaser warrants to the Seller that, save as disclosed to the Seller, there are given subject no arrangements or agreements between the Purchaser or any of its affiliates or any director of any Group member or any Employee to matters fullypay any fees, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no bonuses or other information of payments which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf arise as a result of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into transaction contemplated by this Agreement.
8.4 Each of the Warranties is 12.5 The Seller undertakes not to make any claim against a separate representation Group member or warranty and shall not be restricted in its extent a director, officer or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness employee of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant Group member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any a misrepresentation, inaccuracy or omission in or from any information or advice supplied provided by a Group member or given by any a director, officer or employee of the Company a Group member for the purpose of assisting the Sellers Seller to give any of the Warranties a Warranty or to Tax Warranty or prepare the Disclosure LetterLetter save in the case of fraud or wilful misconduct of such director, officer or employee.
12.6 Each Warranty and Tax Warranty is to be construed independently and is not limited by a provision of this Agreement or another Warranty or Tax Warranty.
12.7 Between the execution of this Agreement and Completion, the Seller shall notify the Purchaser as soon as reasonably practicable if it becomes aware of a fact or circumstance which constitutes or is reasonably likely to constitute a breach of clause 12.1 or which is reasonably likely to cause a Warranty or Tax Warranty which is marked with an asterisk to be untrue, inaccurate or misleading if given in respect of the facts or circumstances as at Completion.
Appears in 1 contract
Warranties. 8.1 5.1 Each Primary Seller severally warrants to the Buyer and its permitted assigns in respect of that Primary Seller and the number of Sale Shares held by that Seller, that each of the statements in Part 2 of Schedule 3 (Title Warranties) are true and accurate as at the Signing Date and if repeated on the Completion Date.
5.2 The Sellers represent and warrant Warrantors jointly and severally warrant to the Buyer and its permitted assigns that subject to all matters Disclosed each of the statements in the terms set out in Schedule 5 and each party acknowledges that the terms Part 3 of Schedule 5 3 (General Warranties) are true and this clause 8 are in the circumstances fair and reasonableaccurate.
8.2 5.3 The Warranties are given subject shall be deemed to matters fully, fairly be repeated on the Completion Date with reference to the facts and accurately disclosed circumstances then prevailing and a reference in sufficient detail any of the Warranties to enable the Buyer date of this Agreement shall be construed as a reference to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information Completion Date.
5.4 Where any Warranty is qualified by the statement “to the best of which the Buyer has actual, constructive or imputed Warrantors’ knowledge and belief” or “so far as the Warrantors are aware” or other similar qualification, such Warranty shall be deemed to include additional statements that it has been made after due and careful enquiry of the directors for the time being of the Company by the Warrantors, and the Warrantors shall be deemed to have knowledge of any information which such enquiries would have revealed.
5.5 Each of the Warranties is without prejudice to any other Warranty and, except where expressly stated otherwise, no clause contained in this Agreement shall govern or limit the extent or application of any other clause.
5.6 Save to the extent otherwise expressly provided in this Agreement, none of the Warranties shall be deemed in any way modified or discharged by reason of any investigation or enquiry inquiry made by or on behalf of the Buyer shall modify or discharge and no information relating to the Sellers’ liability under the Warranties in any way and the provisions Company of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered knowledge (other than actual knowledge from material in writing which the Buyer is aware of at or before Completion and other than to the extent that such information is Disclosed), will:
5.6.1 prejudice any claim which the Buyer may be entitled to bring; or
5.6.2 operate to reduce any amount recoverable by the Buyer under this Agreement and liability in respect thereof will not be confined to breaches discovered before Completion.
5.7 The Primary Sellers acknowledge that the Buyer has relied upon the Warranties on entering into this Agreement.
8.4 Each of Agreement and without restricting the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by Buyer’s right to claim damages on any other term of this Agreement.
8.5 Each of basis, the Sellers undertakes with agree that following a breach of Warranty the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose sum due to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to as a claim under the Warranties or which would materially affect the willingness result of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to such breach will be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available equal to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -aggregate of:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) 5.7.1 the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such there been no breach of Warranty been true and not misleading; together with including the amount by which the value of any asset of the Company (including any asset warranted to exist which does not exist) is or becomes less than the value it would have had attributed to it had there been no such breach; and
5.7.2 all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) reasonably incurred directly or indirectly by the Buyer (and the Company and any other loss or any member of damage suffered by the Buyer’s Group) Buyer or the Company which it would not have incurred had such Warranty been true and not misleadingdirectly attributable to the breach of Warranty.
8.7 Each of 5.8 All sums payable by the Sellers hereby waives any right which it may have Warrantors to the Buyer in respect of any misrepresentationbreach of Warranty will be paid free and clear of all set-off, inaccuracy counterclaims, deductions or omission in or from withholdings whatsoever, save only as may be required by law.
5.9 The Parties agree that any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of claims under the Warranties or to prepare (but not the Disclosure LetterTitle Warranties) shall be limited in accordance with Schedule 4.
Appears in 1 contract
Warranties. 8.1 4.1 The Sellers represent and warrant Vendors jointly and severally warrant to the Buyer Purchaser in the terms set out in Schedule 5 and each party acknowledges that of the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonableWarranties.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other 4.2 Any information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made supplied by or on behalf of the Buyer Company or the Subsidiaries to the Vendors or their agents or accountants, solicitors or other advisers in connection with the Warranties, the Disclosure Letter or otherwise in relation to the business and affairs of the Company or the Subsidiaries shall modify not constitute a representation or discharge warranty or guarantee as to the Sellers’ liability under accuracy thereof by the Warranties in Company or any way of the Subsidiaries and the provisions Vendors hereby waive any and all claims which they might otherwise have against the Company or the Subsidiaries or, save in the case of section 6(2) fraud or fraudulent concealment, any of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excludedtheir respective employees, in respect thereof.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 4.3 Each of the Warranties is a shall be construed as an independent and separate representation or warranty and (save as expressly provided to the contrary) shall not be restricted in its extent or application limited by the terms of any of the other Warranties or by any other term of this Agreementagreement (other than this clause 4).
8.5 4.4 The Vendors shall be under no liability under the Warranties in relation to any matter forming the subject matter of a claim thereunder to the extent that the same or circumstances giving rise thereto are fairly disclosed in the Disclosure Letter (save in the case of Warranty 13.22 against which no disclosure shall be made, or be deemed to be made) or expressly provided for or stated to be exceptions under the terms of this agreement. No letter, document or other communication shall be deemed to constitute a disclosure for the purposes of the Warranties unless the same is fairly disclosed in the Disclosure Letter.
4.5 The Purchaser acknowledges that it is not entering into this agreement in reliance upon any representations or warranties other than the Warranties.
4.6 Each of the Sellers undertakes with Vendors shall give to the Buyer that -Purchaser and its representatives after Completion such information as is known to them and documentation as they may have in their possession relating to the Company and its Subsidiaries as the Purchaser shall reasonably require to enable it to satisfy itself as to the accuracy and observance of the Warranties.
4.7 In addition and without prejudice to the indemnification obligations of the Vendors under clause 9.1, the Vendors hereby jointly and severally indemnify and hold harmless the Purchaser and each other member of the PRG Group from and against all claims, liabilities, legal proceedings, costs, damages and expenses (including, without limitation, reasonable legal fees and expenses incurred in litigation or otherwise) of any nature whatsoever sustained by any of them arising out of or otherwise in connection with:-
(a) each any breach of any Warranty; or
(b) any claim pursuant to the Deed of Indemnity (collectively, with the indemnification obligations of the Warranties Vendors under clause 9.1, the "General Indemnified Claims"). The indemnification obligations set out in this clause 4.7 shall remain true be limited to payments by the Vendors of (i) the amounts necessary to put the Company or the relevant member of the Group into the position, US$ for US$, in which it would have been if there had been no breach of the relevant Warranty and/or no claim pursuant to the Deed of Indemnity and accurate (ii) all costs and expenses (including, without limitation, reasonable legal fees and expenses incurred in litigation, arbitration or otherwise) incurred by the Purchaser (acting reasonably) arising directly out of or directly in connection with such breach of the relevant Warranty or such claim pursuant to the Deed of Indemnity.
4.8 For the avoidance of doubt, the sole remedy of any member of the PRG Group in respect of any General Indemnified Claim shall be to be indemnified pursuant to clause 4.7 of this agreement and no member of the PRG Group shall have any right to claim on each day up any other basis in respect of any General Indemnified Claim.
4.9 The provisions of schedule 7 shall govern the resolution of any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to and including a General Indemnified Claim.
4.10 During the Completion Date as if any express or implied reference in Schedule 5 to period of one year following the date of this Agreement were agreement, the Purchaser shall:-
(a) inform the Vendors' Representative in writing promptly of any fact or matter which comes to its notice or the notice of any other member of the PRG Group whereby it appears that the Vendors are or may be liable to make any payment in respect of any General Indemnified Claim or whereby it appears that any member of the PRG Group is likely to become entitled to recover from some other person a reference sum which is referable to a payment already made by the Completion DateVendors in respect of such a General Indemnified Claim; and
(b) it shall immediately disclose thereafter keep the Vendors' Representative informed of all material facts and developments in relation thereto as soon as reasonably practicable following any member of the PRG Group becoming aware of the same; and
(c) as soon as reasonably practicable provide to the Buyer Vendors' Representative such information and documentation in writing connection therewith as the Vendors' Representative shall reasonably request.
4.11 The Vendors shall be under no liability in respect of any matter which becomes known to it before Completion claim under the Warranties or the Deed of Indemnity unless:-
(a) a Claim Notice in respect of the relevant claim in the form prescribed by paragraph 1 of the Dispute Resolution and which gives rise, or might give rise, to Arbitration Procedures in part (A) of schedule 7 (the "Arbitration Procedures") shall have been served on the Vendors' Representative:-
(i) in the case of a claim under the Warranties or which would materially affect the willingness Deed of Indemnity where the liability of the Vendors thereunder can be conclusively settled or determined through the audit process, by not later than 5.00 p.m. London time on the date of issuance of the independent auditor's report in respect of the first audited financial statements of the Group or the date of issuance of the independent auditor's report in respect of the first audited financial statements of the Group and the PRG Group combined (in each case after the date hereof), such date expected to be no later than 15 April 2000, but in any event, for the purposes of this clause, by no later than 5.00 p.m. London time on the business day prior to the first anniversary of the date hereof;
(ii) in the case of a prudent purchaser for value to purchase claim under the Shares Warranties, other than a claim covered by clause 4.11(a)(i) above, and/or a claim under the Deed of Indemnity, by not later than 5.00 p.m. London time on the business day prior to the first anniversary of the date hereof; and
(b) in any case the claim shall have been resolved at the end of each such relevant period specified in clause 4.11
(a) in one of the following ways:-
(i) the Vendors' Representative has concurred in the claim asserted by the Claim Notice in the manner prescribed by paragraph 2 of the Arbitration Procedures; or
(ii) the Vendors' Representative and the Purchaser have concluded a written agreement setting out the terms upon which the claim asserted by the Claim Notice is finally settled; or
(iii) the Arbitrator appointed pursuant to the Arbitration Procedures to resolve the claim which is the subject of this Agreementthe Claim Notice (or, as the case may be, the Dispute (as defined in the Arbitration Procedures)), has made his final award in respect of such claim or Dispute.
8.6 If 4.12 Save in the case of fraud or fraudulent concealment by any of the Warranties shall prove to be untrue or misleadingVendors, the Sellers shallVendors shall be under no liability in respect of any claim under the Warranties other than Warranty 4.7 of schedule 4 (and excluding, without prejudice for the avoidance of doubt, any claim under the Deed of Indemnity):-
(a) where the liability of the Vendors in respect of that claim would (but for this paragraph) have been less than US$10,000; and
(b) unless and until the liability in respect of that claim when aggregated with the liability of the Vendors in respect of all other claims (other than claims excluded by clause 4.12(a) above) shall exceed US$500,000, whereupon the Vendors shall be liable only for the aggregate amount of such claims in excess of US$250,000; PROVIDED ALWAYS that:-
(i) where there is a series of claims arising within the periods stipulated in clause 4.11 from the same or closely related facts or circumstances, such claims shall be aggregated and treated as one claim for the purpose of this clause; and
(ii) if in the case of a claim under Warranty 4.7, the Purchaser has not previously consulted with the Vendors' Representative prior to settling any such claim with a third party, the limitations in paragraphs (a) and (b) above shall apply.
4.13 Save in the case of fraud or fraudulent concealment by any of the Vendors, and notwithstanding their joint and several liability hereunder:-
(a) the aggregate liability of the Vendors in respect of all General Indemnified Claims shall not in any circumstances exceed an amount in US$ equal to 50 per cent. of the total value of the Consideration Shares as at the Completion Date (valued at the average closing sale price per Consideration Share (as reported in The Wall Street Journal) for the thirty trading days ending two trading days prior to the Completion Date (such valuation per share being the "Consideration Share Value")); and
(b) the aggregate liability of each Vendor individually in respect of all General Indemnified Claims shall be limited to an amount in US$ equal to 50 per cent. of the Consideration Share Value of the Consideration Shares received by that Vendor pursuant to this agreement.
4.14 The Purchaser shall have the right to set-off against the Escrow Shares in accordance with the Indemnity Escrow and Stock Pledge Agreement any amounts payable by the Vendors to the Purchaser pursuant to this agreement. The right of set-off shall not be exclusive of any other right or remedy which the Purchaser may be available have with respect to any amounts payable by the Vendors to the BuyerPurchaser pursuant to this agreement, pay to whether under this agreement, at law or in equity.
4.15 Any General Indemnified Claim shall be dealt with in the Buyer (or to following manner during the relevant member term of the Buyer’s Group) on demand -Indemnity Escrow and Share Pledge Agreement:-
(a) Escrow Shares held in the amount by which Escrow Fund to satisfy General Indemnified Claims (the "General Indemnity Shares") may only be used to satisfy such claims and no other claims;
(b) if and to the extent that the Escrow Fund contains only Escrow Shares and the General Indemnified Claim can be fully satisfied from the value of the Escrow Shares is less than it (valued for the purposes of determining the number of such Escrow Shares to be transferred to the Purchaser in satisfaction of such claim at the Closing Price (such valuation per Escrow Share being the "Escrow Share Value")), then such claim shall be satisfied in Escrow Shares at the Escrow Share Value and in accordance with the procedure set out in clause 4.16 below;
(c) if and to the extent that the Escrow Fund contains partly Escrow Shares and partly cash proceeds from the prior sale of Escrow Shares by any of the Vendors (in accordance with the Indemnity Escrow and Stock Pledge Agreement) and the General Indemnified Claim can be fully satisfied from the value of the Escrow Shares and the amount of the Escrow Share Cash Equivalent (for these purposes "Escrow Share Cash Equivalent" meaning the amount of the cash proceeds that would have been received by the relevant Vendor had the Escrow Shares sold been valued at the Escrow Share Value); then such Warranty been true claim shall be fully satisfied pro rata in Escrow Shares and not misleadingcash (by reference to the number of Escrow Shares and the amount of cash held in the Escrow Fund and valued at the Escrow Share Value and the value of the Escrow Share Cash Equivalent respectively) and in accordance with the procedure set out in clause 4.16 below;
(d) if and to the extent that the Escrow Fund contains only cash proceeds from the prior sale of Escrow Shares by any of the Vendors (in accordance with the Indemnity Escrow and Stock Pledge Agreement) and the General Indemnified Claim can be fully satisfied from the amount of the Escrow Share Cash Equivalent, then such claim shall be fully satisfied in cash valued at the Escrow Share Cash Equivalent and in accordance with the procedure set out in clause 4.16 below;
(e) if and to the extent that the General Indemnified Claim exceeds the value of the Escrow Fund (being the aggregate value of the Escrow Shares valued at the Escrow Share Value and/or cash proceeds from the prior sale of Escrow Shares by any of the Vendors (in accordance with the Indemnity Escrow and Stock Pledge Agreement) valued at the Escrow Share Cash Equivalent (as the case may be)), then the claim shall be partly satisfied from the Escrow Fund and the Purchaser shall have the general right to bring legal proceedings against the Vendors for any such excess (the "Escrow Excess") provided always that if any Vendor holds any Consideration Shares at the time any such proceedings are settled or finally determined (pursuant to the procedures set out in clause 18 and schedule 7 of this agreement or by a court of competent jurisdiction), the Purchaser shall first recover from such Vendor such number of Consideration Shares as shall equal (as nearly as may be) the amount of that Vendor's proportionate share of the Escrow Excess (the Consideration Shares being valued for these purposes at the Escrow Share Value).
(a) PRG may serve a Disbursement Instruction (as defined in clause 4.1 of the Indemnity Escrow and Stock Pledge Agreement) on the Escrow Agent provided that a Determination of Claim (as defined in clause 4.16(b) below) has occurred in no event later than the first anniversary of the date of this agreement. A copy of any Disbursement Instruction shall be sent concurrently to the Vendors' Representative.
(b) A "Determination of Claim" shall be the earliest to occur of the following after the Vendors' Representative receives a Claim Notice from the Purchaser pursuant to paragraph (A)1 of schedule 7:
(i) delivery by the Vendors' Representative of an Acceptance Notice to the Purchaser pursuant to paragraph (A)2(2) of schedule 7 concurring in the claim asserted by the Claim Notice;
(ii) 15 business days after receipt by the Vendors' Representative of the Claim Notice, unless the Vendors' Representative shall have given to the Purchaser and the Escrow Agent a Notice of Dispute as defined in and pursuant to paragraph (A)2(1) of schedule 7 that he disputes the claim asserted by the Claim Notice; or
(biii) in the amount necessary event that the Vendors' Representative has given to put the Purchaser a Notice of Dispute, then upon the date of:
(A) a joint written notice signed by the Purchaser and the Vendors' Representative stating that such dispute has been resolved in one of the ways set out in clause 4.11(b) of this agreement;
(B) a binding and final arbitration award made pursuant to part (B) of schedule 7 (certified as such by the Purchaser's Solicitors); or
(C) a final judgement, order or decree of a court of competent jurisdiction.
(c) Any Escrow Shares or Escrow Share Cash Equivalent distributed to PRG hereunder shall be distributed without regard to the proportion of the total number of Escrow Shares originally deposited with the Escrow Agent in respect of any Vendor or to whether or not the basis for any claims was related to a particular Vendor.
4.17 The Vendors shall not be liable for any claim under the Warranties other than those Warranties set out in paragraph 13 of schedule 4 (the "Tax Warranties") (for the purposes of this clause 4.17, a "Claim"):-
(a) if and to the extent to which the Claim would not have arisen but for, or to the extent the Claim is increased directly as a result of:-
(i) any voluntary act or omission of the Company and or any member of Subsidiary or the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (Purchaser or any member of the Buyer’s Group) or the Company PRG Group after Completion which it would not have incurred had such Warranty been true and not misleading.
8.7 Each member of the Sellers hereby waives any right which it may PRG Group knew, or ought reasonably to have in respect of any misrepresentationknown, inaccuracy would give rise to such a liability otherwise than a voluntary act or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for occurring in the purpose ordinary course of assisting the Sellers to give any business of the Warranties Company as carried on at the date hereof; or
(ii) any act, matter or thing done or omitted to prepare be done prior to Completion by, or at the Disclosure Letter.written request of or with the written approval of, the Purchaser or its advisers;
(b) if the Claim is based upon a liability which is contingent only unless and until such contingent liability becomes an actual liability and is due and payable;
(c) to the extent that specific provision
Appears in 1 contract
Sources: Acquisition Agreement (Profit Recovery Group International Inc)
Warranties. 8.1 The Sellers represent 8x8 represents and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges warrants that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf as of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the Effective date of this Agreement were agreement it has received no notice that H.324 Technology and Technical Information infringes any patent, copyright, trade secret or other intellectual property right (collectively Intellectual Property Rights) of any third party. 8x8 will immediately advise KME of any such notice received by 8x8 in the future as it applies to H.324 Technology (or LVP/VCP Technology if KME elects to manufacture it), whether current versions of H.324 Technology or later enhanced versions, and whether the enhancement was done by 8x8 or KME; likewise KME will notify 8x8 of any notice KME receives where there is a reference claim that applies to H.324 Technology (or LVP/VCP if KME elect to manufacture it), whether current versions of H.324 Technology or later enhanced versions, and whether the enhancement was done by 8x8 or KME. Each party bears the risk that some party claims or sues it with respect to alleged infringement of Intellectual Property Rights of others; provided that the other party will cooperate in such litigation to the Completion Date; and
(b) extent it shall immediately disclose to the Buyer can be helpful in writing any matter which becomes known to it before Completion and which gives risedefending against such claims of other third parties. EITHER PARTY MAKES NO WARRANTIES EXPRESSED OR IMPLIED AS TO THE QUALITY, or might give risePATENTS OR COPYRIGHTS OF ANYTHING DELIVERED HEREUNDER AND ENHANCEMENT, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementEXCEPT AS SPECIFIED IN THIS AGREEMENT. EITHER PARTY MAKES NO INDEMNITY IN THE EVENT THAT THE OTHER PARTY IS SUED FOR ANYTHING RELATED TO THE H.324 TECHNOLOGY OR LVP/VCP TECHNOLOGY OR ENHANCEMENT HEREUNDER EXCEPT AS SPECIFIED IN THIS AGREEMENT, BUT EITHER PARTY WILL COOPERATE IN THE EVENT OF SUCH LITIGATION TO ASSIST THE OTHER PARTY TO DEFEND SUCH LITIGATION.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: License Agreement (8x8 Inc)
Warranties. 8.1 5.1 The Sellers represent and warrant Warrantors hereby jointly and severally warrant and represent to and undertake with the Buyer Purchaser and its successors in title in relation to each of the Group Companies in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given SIXTH SCHEDULE subject only to matters fully, any exceptions fairly and accurately disclosed in sufficient detail the Disclosure Letter, and in the documents annexed thereto. No document or matter or information shall be deemed to enable have been disclosed to the Buyer Purchaser except to understand their nature the extent that it is either accurately and scope fairly set out in or (in the case of a document) annexed to the Disclosure Letter. The Vendors acknowledge that the Purchaser has entered into this Agreement on the basis of and in reliance upon the Warranties. The Warranties shall be separate and independent and shall not be limited by reference to any other paragraph of the SIXTH SCHEDULE or by anything in this Agreement. Liability under any Warranty shall not be confined to breaches discovered before Completion nor in any way be modified or discharged by Completion. Reference in the Warranties to "the Company" shall include each company in the Group.
5.2 The Warrantors jointly and severally warrant that all information relating to the Group Companies (or any of them) which is known to the Vendors or would on reasonable enquiry be known to the Vendors and as to the business affairs, assets and liabilities of each of the Group Companies has been disclosed in the Disclosure Letter to the Purchaser.
5.3 Save in the case of fraud or wilful concealment, the Vendors hereby irrevocably undertake (‘Disclosed’in the event of any claim being made against them (or any of them) but no other information of which in connection with the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf sale of the Buyer shall modify or discharge Shares to the Sellers’ liability under the Warranties in Purchaser) not to make any way and the provisions of section 6(2) claim against any of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of factGroup Companies, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent against any director or application by the terms employee of any of the other Warranties or by such companies on whom they may have relied before agreeing to any other term of this Agreement.
8.5 Each of Agreement or authorising any statement in the Sellers undertakes Disclosure Letter, and the Vendors agree with the Buyer that -
Purchaser (aas trustee for the Company) each of to waive any rights the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it Vendors may have in respect of any misrepresentation, misrepresentation inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company Group Companies or their respective directors or employees for the purpose purposes of assisting or in connection with the Sellers giving of the Warranties and the preparation of the Disclosure Letter. None of the information supplied by any of the Group Companies or their professional advisers prior to the date of this Agreement to the Vendors or their agents, representatives or advisers in connection with the Warranties or the contents of the Disclosure Letter or otherwise in relation to the business or affairs of any of the Group Companies shall be deemed a representation warranty or guarantee of its accuracy by any of the Group Companies or any of their employees to the Vendors and accordingly the Vendors waive any claim against any of the Group Companies or their employees which they might otherwise have in respect of it.
5.4 Notwithstanding the provisions of Clause 5.1:-
A. The Warrantors shall not be liable in respect of any breach of the Warranties if and to the extent that the loss occasioned thereby has been recovered under the Deed of Indemnity or the Environmental Indemnity;
B. The liability of the Warrantors pursuant to the General Warranties (save the Tax Warranties) shall expire on the third anniversary of Completion save as regards any alleged breach of any of the Warranties in respect of which notice in writing (containing such details of the event or circumstance giving rise to such claim as are available to the Purchaser and an estimate (if capable of preparation by the Purchaser) of the total amount of the Warrantors' liability therefor) shall have been served on the Warrantors (or any of them) prior to that date PROVIDED ALWAYS that there shall be no such time limit insofar as any claim relates to or is delayed as a result of fraud, wilful misconduct, dishonesty or wilful concealment or where any claim relates to title to the Shares or the right of the Vendors to sell the Shares free from all encumbrances of any kind
C. The liability of the Warrantors pursuant to the Tax Warranties shall expire on the seventh anniversary of Completion save as regards any claim for breach of any of the Tax Warranties in respect of which notice in writing (containing such details of the event or circumstance giving rise to such claim as are available to the Purchaser and an estimate (if capable of preparation by the Purchaser) of the total amount of the Warrantors' liability therefor) shall have been served on the Warrantors (or any of them) prior to that date PROVIDED ALWAYS that there shall be no such time limit insofar as any claim relates to or which arose as a consequence of or is delayed as a result of fraud, wilful misconduct, dishonesty or wilful concealment.
D. Any claim in respect of which notice shall have been given in accordance with sub-clause 5.4 B and/or sub-Clause 5.4 C shall, if it has not been previously satisfied, settled or withdrawn be deemed to have been irrevocably withdrawn and lapsed unless proceedings in respect of such claim have been issued and served on the Vendors (or any of them) or their process agent Messrs ▇▇▇▇▇▇ ▇▇▇, Solicitors, not later than the expiry of the period of 12 (twelve) months from and including the date of such notice.
E. The Warrantors shall not be liable under the Warranties in respect of any claim:-
(i) unless the aggregate amount of all claims for which the Warrantors would otherwise be liable under this Agreement and the Deed of Indemnity and the Environmental Indemnity exceeds euro 100,000 but if liability exceeds that figure then all claims including claims previously notified, shall accrue against and be recoverable in full from one euro upwards from the Warrantors PROVIDED THAT in the case of any claim relating to the Vendors' title to or the status or validity of the Shares or any claim which arose as a consequence of or is delayed as a result of fraud, wilful misconduct, dishonesty or wilful concealment the liability of the Warrantors shall be without limitation; or
(ii) to the extent that the aggregate amount of the liability of the Warrantors for all claims made under the Warranties and the Deed of Indemnity and Environmental Indemnity would thereby exceed euro 27,000,000 or such lesser figure as may actually have been paid hereunder by the Purchaser as a result of the operation of the provisions of Section 3.2 but without prejudice to the Purchaser's rights to recover all sums up to and including euro 27,000,000 (or such lesser figure as may actually have been paid hereunder by the Purchaser as a result of the operation of the provisions of Section 3.2) PROVIDED ALWAYS THAT in the case of any claim relating to the Vendors' title to or the status and validity of the Shares or any claim which arose as a consequence of or is delayed as a result of fraud, wilful misconduct, dishonesty or wilful concealment the liability of the Warrantors shall be without limitation; or
(iii) to the extent that such liability arises solely by reason of an increase in the rate of Taxation after Completion; or
(iv) to the extent that a specific provision or reserve in respect of the liability was made in the Accounts or in the Completion Accounts provided that this exemption may be used only once in respect of a specific provision or reserve; or
(v) to the extent that such liability is in respect of tax and which tax is attributable to income or profits of the Group Companies in respect of the period between the Relevant Date and Completion and for which any of the Group Companies is primarily liable and which arose in the ordinary course of business of the Group Companies between the Relevant Date and Completion; or
(vi) to the extent that such liability arises due to a breach of any new legislation not in force at the date hereof; or
(vii) to the extent that and only to the extent that the Purchaser or any of the Group Companies is entitled to recover and has recovered any loss or damage suffered by the Purchaser or any of the Group Companies arising out of such claim under the terms of any insurance policy for the time being in force but provided always that nothing in this sub-section shall prevent the Purchaser from being able to claim any amount from the Warrantors which is not recoverable under such insurance policies plus any tax and costs reasonably and properly incurred in such recovery;
(viii) to the extent that such claim would not have arisen but for a voluntary transaction, act or omission effected by the Purchaser or the Company at any time after Completion which the Purchaser knew or ought reasonably to have known would give rise to the claim other than any such transaction, act or omission:
(a) carried out in the ordinary course of business; or
(b) carried out under a binding commitment (whether legally binding or not) created before Completion; or
(c) carried out as a result of a request (not initiated by or on behalf of the Purchaser) by a regulatory authority (including without limitation the Revenue Commissioners) to comply with any law or any statute or carried out in order to comply with any law; or
(d) carried out with the knowledge of the Vendors (or any of them);
(ix) to the extent that such claim would not have arisen but for the winding up of, or the cessation of, or any material change in the nature or conduct of, any trade carried on by the Company where the Purchaser knew or ought reasonably to have known such change or cessation or winding up would create such liability being a winding up, cessation or change occurring on or after Completion but excluding a winding up, cessation or change resulting directly from a claim under the Warranties or the Deed of Indemnity or the Environmental Indemnity;
(x) to the extent that any income, profits or gains (after payment of any tax thereon) to which that claim is directly attributable were accrued or earned or actually received by the Company and are available to the Company at Completion and are not provided for in the Accounts or in the Completion Accounts and continue to be available to the Company at the time of the claim but provided that any such income profit or gains is net of any tax payable by the Company or any Group Company thereon;
(xi) to the extent that such claim is or could be off-set, reduced, or otherwise relieved by any tax relief which is available to the Company at Completion and which has not been previously identified in the Accounts or the Completion Accounts and which has not been withdrawn or clawed back and which is and will continue to be available to the Company;
(xii) to the extent that (and only at the date when) any Taxation for which a Group Company is actually assessed is actually reduced or extinguished (and is not and cannot be clawed back or reclaimed by any taxation authority or other authority in which case no allowance or credit will be given to the Warrantors under this clause or any credit given to the Warrantors shall be disallowed) as a result of any such claim or liability and after deducting the costs and any additional Taxation incurred or suffered by a Group Company as a consequence of claiming such reduction or extinguishment but provided that claiming any such reduction or extinguishment will not prejudice the Purchaser or the Group Companies tax affairs or tax planning; or
(xiii) to the extent that the claim is attributable (in whole or in part and if in part to the extent thereof) to, or is increased as a direct result of, a change made after the date of Completion in the accounting policies or the length of any accounting period for taxation purposes of the Purchaser or the Group Company; or
(xiv) If and to the extent that such claim occurs or is increased as a result of any change in legislation after the date of this Agreement or the withdrawal after the date of this Agreement of any published concession or published general practice previously made by the Revenue Commissioners or any other Taxation Authority (within Ireland) but for the avoidance of doubt the foregoing exclusion shall not extend to the Revenue Commissioners ruling of the 20 August, 1996 or the Company's entitlement to manufacturing relief prior to Completion or post Completion with retrospective effect to periods prior to Completion;
(xv) to the extent that such liability arises by reason of the voluntary withdrawal post Completion of any claim, election, surrender or disclaimer made or notice given by the Company prior to the date hereof where the Purchaser knew or ought reasonably to have known that such withdrawal of any such claim, election, surrender or disclaimer would give rise to such claim;
5.5 To the extent that the same subject matter is dealt with by more than one of the Warranties and a payment is made by the Warrantors (or any of them) to the Purchaser as a result of a claim by the Purchaser based on any one or more of the Warranties such payment shall preclude a further claim by the Purchaser in respect of the same subject matter and the same loss or damage based on another of the Warranties.
5.6 The amount of any successful claim against the Vendors under this Agreement or the Deed of Indemnity or the Environmental Indemnity shall be deemed to constitute a reduction in the Consideration.
5.7 The rights and remedies of the Purchaser in respect of a breach of any of the Warranties and the Deed of Indemnity and the Environmental Indemnity shall not be affected:
A. by the sale and purchase of the Shares; or
B. by any event or matter whatsoever save a specific and duly authorised written waiver and release by the Purchaser; or
C. by any investigation, audit, inquiry or examination made by or on behalf of the Purchaser or the Guarantor at any time whether before or after the date of this Agreement; and no single or partial exercise of any right or remedy shall preclude any further or other exercise.
5.8 All sums payable by the Warrantors to the Purchaser under this Agreement shall be paid free and clear of all deductions or withholdings whatsoever save only as may be required by law. If any such deductions or withholdings are required by law the Warrantors shall be obliged to pay to the Purchaser such sums as will after such deduction or withholding has been made leave the Purchaser with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. In the event of any sum as deducted or withheld being recovered in whole or in part by the Purchaser then the Purchaser shall pay the amount recovered (less any costs incurred in such recovery and taxation thereon) over to the Vendors when received up to the amount so deducted or withheld.
5.9 For the purposes of the SIXTH SCHEDULE hereof all references to the Company shall mean and include where the context so admits or requires:-
(a) each Subsidiary; and
(b) the Company and its Subsidiaries. and is without prejudice to the definition of Group Companies.
5.10 The Purchaser warrants to the Vendors that at the date hereof it is not actually aware of any matter giving rise to a claim under the Warranties, the information or details of which the Purchaser has not made available to the Vendors (or some of them) or their advisers or brought to the attention of the Vendors (or some of them) or their advisers.
5.11 No breach or breaches of any of the Warranties or any covenant or undertaking contained in this Agreement or under the Deed of Indemnity or the Environmental Indemnity shall give rise to prepare any right on the Disclosure Letterpart of the Purchaser to rescind this Agreement after Completion but this shall not prejudice the right of the Purchaser to claim for any loss or damages and shall not prejudice the Purchaser or the Group Companies (or any of their) rights or limit their rights under this Agreement or the Deed of Indemnity or the Environmental Indemnity.
5.12 Where the Purchaser or the Company has a claim against a third party (including without limitation any taxation authority) in relation to any matter which has given rise to a claim in respect of a Warranty under this Agreement and in respect of which the Vendors have paid and discharged in full their liability therefor to the Purchaser, then subject as hereinafter pr
Appears in 1 contract
Sources: Share Purchase Agreement (Charles River Laboratories International Inc)
Warranties. 8.1 The Sellers represent and warrant jointly and severally QUALCOMM warrants only to Buyer that for a period of ninety (90) days after delivery to the Buyer Delivery Point that (i) the Products (excluding the Software) will be free from material defects in workmanship and materials under normal use, and (ii) the terms set out Software will be free from programming errors which significantly impair its operation for the purposes expressly contemplated in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf Agreement. Buyer’s sole remedy for breach of the Buyer above warranty shall modify or discharge be the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) return of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as allegedly defective item to QUALCOMM at Buyer’s sole expense and, if QUALCOMM determines that such item is defective and covered by warranty, QUALCOMM shall repair or replace, at QUALCOMM’s sole option, the Warranties relate item or, if QUALCOMM determines that it is unable to matters of factrepair or replace such item, they QUALCOMM shall constitute representations refund to Buyer the price paid therefor. Notwithstanding the foregoing, no warranty, expressed or implied, shall extend to any Product which has been subjected to misuse, neglect, accident, or improper storage or installation or which has been repaired, modified, or altered by anyone other than QUALCOMM or in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty manner not otherwise authorized by QUALCOMM. QUALCOMM does not warrant and shall not be restricted in its extent responsible for any design, specification, drawing or application other data or information furnished by the terms of it to Buyer hereunder. QUALCOMM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QUALCOMM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. Buyer hereby acknowledges and agrees that it has not relied on any of the representations or warranties other Warranties or by any other term of this Agreementthan those expressly set forth herein.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Development, Test, and Deployment Products Standard Terms and Conditions (Gogo Inc.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally 14.1 In relation to the Buyer Farnell Volume Business (including each of the Companies and Businesses) Premier Farnell warrants to Arrow (who holds the benefit of such warranties for itself and as trustee for each Company Purchaser and each Business Purchaser) in the terms set out in Schedule 5 of the Warranties.
14.2 Save with the prior written consent of Arrow, Premier Farnell shall not, and each party acknowledges shall procure that the terms of Schedule 5 and this clause 8 are no Company Vendor or Business Vendor shall (in the circumstances fair and reasonableevent of any claim being made against any of them in connection with the sale of Shares or any Business or Business Assets), make any claim against any Company or any of its subsidiaries or subsidiary undertakings or (save in the ease of fraud or fraudulent misrepresentation) against any director or employee of any Company or any of its subsidiaries or subsidiary undertakings or any director or employee engaged by any Business Vendor as at the date of Completion, on whom Premier Farnell or any Company Vendor or Business Vendor may have relied before agreeing to any term of this Agreement, of the appropriate Transfer Agreement or the content of any of the Warranties or of the Tax Deed or authorizing any statement in the Disclosure Letter.
8.2 The 14.3 Each of the Warranties are shall be construed as a separate warranty and is given subject to the matters fully, which are fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter but (‘Disclosed’save as expressly provided to the contrary) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be otherwise limited or restricted in its extent by reference to or application by inference from the terms of any of the other Warranties Warranty or by any other term of this Agreement.
8.5 Each 14.4 Premier Farnell shall immediately disclose to Arrow any matter or thing which may arise or become known to it or any other member of the Sellers undertakes Premier Farnell Group after the date of this Agreement which is inconsistent with the Buyer that -
(a) each any of the Warranties or which might render any of them misleading.
14.5 The Warranties, save for the Warranties referred to in Schedule 9, shall remain true be deemed to be repeated at the Transfer Date and accurate on each day up to at Completion and including the Completion Date as if any express or implied reference in Schedule 5 therein to the date of this Agreement were shall be replaced by a reference to the Completion Date; and
(b) it shall immediately disclose Transfer Date or to the Buyer in writing date of Completion, as the case may be.
14.6 Arrow (for itself and on behalf of each Company Purchaser and Business Purchaser) shall be entitled to claim after Completion that any matter which becomes known to it of the Warranties is or was untrue or misleading or has or had been breached even if Arrow or any Company Purchaser or Business Purchaser could have discovered on or before Completion that the Warranty in question was untrue misleading or had been breached and which gives riseCompletion shall not in any way constitute a waiver of any of the rights of Arrow or any Company Purchaser or Business Purchaser.
14.7 Save as expressly provided to the contrary in this Agreement, or might give rise, to a claim under the Warranties or which would materially affect the willingness rights and remedies of Arrow and each Company Purchaser and Business Purchaser in respect of a prudent purchaser for value to purchase the Shares on the terms breach of this Agreement.
8.6 If any of the Warranties shall prove to not be untrue affected by Completion, by any investigation made by or misleading, the Sellers shall, without prejudice to any other right on behalf of Arrow or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Arrow Group into the affairs of any Company or any Business (as the case may be), by the giving of any time or other indulgence by Arrow or any Company Purchaser or Business Purchaser to any person, or by any other cause whatsoever except a specific waiver or release by Arrow in writing; and any such waiver or release shall not prejudice or affect any remaining rights or remedies of Arrow or any Company Purchaser or Business Purchaser.
14.8 Premier Farnell acknowledges and agrees with Arrow that, in relation to any claim made in connection with a breach of any of the Warranties, Arrow may determine at its sole discretion to seek damages calculated on either of the following bases:
14.8.1 so as to recover the loss or damage suffered or incurred by the relevant Company Purchaser or Business Purchaser arising from the breach of any of the Warranties; or
14.8.2 so as to recover the loss or damage required to put the relevant Company Purchaser or Business Purchaser into the position that it would have been in had such Warranty the relevant matter been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingas so warranted.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 The Sellers represent (a) Each party executing this Agreement represents and warrant jointly warrants that both it and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or person signing on behalf of such party are duly authorized to execute the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way same, and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference constitutes the legal, valid and binding obligation of such party, enforceable against such party according to the Completion Date; andits terms.
(b) Each Vendor represents and warrants that it shall immediately disclose is the sole and exclusive legal and beneficial owner of its Outstanding Amount, free and clear of any security interests, agreements, restrictions, claims, liens, pledges, assessments and encumbrances of any kind or nature , and has the unrestricted power to settle such Outstanding Amount.
(c) Each Vendor (i) understands that neither its Warrant nor the common stock underlying its Warrant has been registered under the Securities Act of 1933, as amended (the “Securities Act”), nor have either been registered pursuant to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any provisions of the Warranties shall prove to be untrue securities laws or misleading, the Sellers shall, without prejudice to other laws of any other right or remedy which may be available applicable jurisdictions, in reliance on exemptions for private offerings contained in the laws of such jurisdictions, (ii) is an “accredited investor” as defined by the rules and regulations of the U.S. Securities and Exchange Commission pursuant to the BuyerSecurities Act, pay to the Buyer (or to the relevant member of the Buyer’s Groupiii) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company acquiring its Warrant for its own account for the purpose of assisting the Sellers investment, and not with a view to give any resale or other distribution thereof in violation of the Warranties Securities Act, (iv) is a sophisticated investor with such knowledge and experience in financial and business matters as to be able to evaluate the merits and risks of an investment in its Warrant and that it is able to and must bear the economic risk of the investment in such Warrant for an indefinite period of time because such Warrant has not been registered under the Securities Act, and therefore cannot be offered or sold unless such Warrant is subsequently registered under the Securities Act or an exemption from such registration is available, (v) has had the opportunity to prepare ask questions and obtain answers from management of the Disclosure LetterCompany and has received information which such Vendor has reasonably requested, and (vi) understands the risks of an investment in the Company’s securities, which risks are described in the Company’s public securities filings.
Appears in 1 contract
Warranties. 8.1 a. The Sellers represent and warrant jointly and severally Company warrants that:
i. The Works will conform to the Buyer Statement of Work; and
ii. The Goods or Services will be free from material defects at the time of installation and for the period contained in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonableManufacturer’s Warranty (“Warranty Period”).
8.2 b. The Warranties are given Company further warrants that it will repair or make good any defects in its Workmanship arising within one year following completion of the Services for which the defect is claimed, (“Workmanship Guarantee”). This Workmanship Guarantee is subject to matters fully, fairly and accurately disclosed in sufficient detail the following conditions:
i. The Workmanship Guarantee does not apply to enable the Buyer to understand their nature and scope in the Disclosure Letter goods or Services provided (‘Disclosed’) but no other information of for which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date Customer acknowledges Clause 12 of this Agreement were a reference applies):
ii. The Company’s liability in respect of all claims arising from the Workmanship Guarantee will be limited to the Completion Date; andlabour value of the Workmanship;
(b) it shall immediately disclose iii. The Workmanship Guarantee does not cover any occurrence which would normally be covered by public liability insurance or any other form of insurance;
iv. The Workmanship Guarantee does not apply where alterations or repairs are made by the Customer or any third party to the Buyer in writing any matter which becomes known to it before Completion Works without the knowledge and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any prior written consent of the Warranties shall prove Company (and without the Company first having the opportunity to be untrue or misleading, remedy the Sellers shall, without prejudice same to its satisfaction);
v. The benefit of the Workmanship Guarantee is not assignable by the Customer to any other right person;
vi. The Workmanship Guarantee does not apply for so long as the Works have not been completed in full or remedy which may be available the Customer is in default in relation to any payment owing to the Buyer, pay to the Buyer (Company;
vii. The Workmanship Guarantee does not cover any loss or to the relevant member damage caused by any act or omission of the Buyer’s Group) on demand -Customer outside the control of the Company;
(a) viii. The Workmanship Guarantee does not cover any indirect, special, incidental or consequential loss or damage, however caused;
ix. The Company is not liable to carry out any remedial work under the amount by Workmanship Guarantee unless they receive written notice from the Customer of any claim within seven days after discovery of the defect.
c. The Customer is not entitled to withhold payment for any invoices issued for goods or Services for which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingWorkmanship Guarantee applies.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Terms of Trade
Warranties. 8.1 The Sellers represent and warrant jointly and severally 4.1 Each of the Warrantors hereby acknowledges that he has made representations to the Buyer Buyers in the terms set out of the Warranties at the date of this agreement with the intention of inducing the Buyers to enter into this agreement. Accordingly each of the Warrantors hereby severally represents and warrants to the Buyers, subject to the provisions of this clause 4 and schedule 5 in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations acknowledges that each Buyer is entering into this agreement in reliance upon which the Buyer has entered into this Agreementsuch Warranties.
8.4 Each 4.2 The Warranties, and those other obligations of the Sellers, the Buyers and the Warrantors under this agreement which then remain to be performed, shall survive Completion.
4.3 Insofar as any information supplied directly or indirectly by any group company or its agents, advisers, directors, officers or employees prior to Completion to any of the Warrantors or their agents, advisers, directors, officers or employees in connection with the Warranties is and any disclosures thereto shall or could be deemed to be a separate representation or warranty made by the relevant group company to such Warrantor, such Warrantor hereby waives any and all claims against the relevant group company in respect thereof.
4.4 Each Warranty shall be construed independently of any other to the intent that the meaning and effectiveness of any one Warranty shall not be restricted in its extent or application by reference to any other Warranty.
4.5 No claim by the terms Buyers shall be prejudiced or reduced in consequence of any of the information relating to any group company (other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference than, in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, relation to a claim under the Warranties Warranties, information disclosed to the Buyers as provided in this clause 4 and in schedule 5) which may come to the knowledge of the Buyers or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreementits advisers after Completion.
8.6 If any 4.6 The Warranties are qualified to the extent of the facts and circumstances disclosed in the Disclosure Letter and the Disclosure Documents or deemed pursuant to paragraph 2 of schedule 5 to have been disclosed. Subject to paragraph 6 of schedule 5 no other knowledge relating to a group company (actual constructive or imputed) prevents or limits a claim made by the Buyers for breach of the Warranties and the Warrantors may not invoke the Buyers' knowledge (actual constructive or imputed) of a fact or circumstance which might make a Warranty untrue, inaccurate, incomplete or misleading as a defence to a claim for a breach of Warranty.
4.7 The Warrantors shall prove to be untrue or misleading, not (in the Sellers shall, without prejudice to event of any other right or remedy which may be available to claim made against any of them in connection with the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value sale of the Shares is less than it would have been had such Warranty been true and not misleading; or
(bto the Buyers) the amount necessary to put make any claim against the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) group company or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives against any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer director or employee of the Company for or any group company on whom they have relied before agreeing to any term of this agreement or the purpose Tax Deed or authorising any statement in the Disclosure Letter save that in circumstances where the Warrantors have been fraudulently misled or information has been deliberately and knowingly withheld by any such director or employee, or where any employee has otherwise acted in bad faith, the Warrantors shall be entitled to make a claim against any such director or employee who has acted fraudulently or deliberately and knowingly withheld information.
4.8 The provisions of assisting schedule 5 shall operate to limit or exclude, as the Sellers to give any case may be, the liability of the Warranties or to prepare the Disclosure LetterWarrantors for Relevant Claims (as defined therein).
Appears in 1 contract
Sources: Agreement for the Sale of Shares (Getty Images Inc)
Warranties. 8.1 The Sellers represent Seller acknowledges that the Buyer is entering into this agreement in reliance upon each of the Warranties and warrant jointly that the Warranties are given with the intention of inducing the Buyer to enter into this agreement. Accordingly, the Seller represents and severally warrants to the Buyer (in relation to the terms Business and Assets) that each of the statements set out in Schedule 5 part 1 of schedule 3 is true and each party acknowledges that the terms of Schedule 5 and this clause 8 are accurate in the circumstances fair and reasonableall respects.
8.2 The Warranties shall be separate and independent and shall not be limited by reference to any other paragraph or sub-paragraph of part 1 of schedule 3 or by any other provision of this agreement.
8.3 The Seller’s Warranties are given subject to the matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which Letter. The Seller shall indemnify and hold harmless the Buyer has actual, constructive or imputed knowledge (and no investigation or enquiry made by or on behalf members of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way Buyer’s Group) from and the provisions of section 6(2) of the Law of Property against all actions, proceedings, losses, costs (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of factincluding legal costs and disbursements), they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty expenses, damages, claims and shall not be restricted in its extent or application by the terms of any of the demands and all other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
liabilities whatsoever (a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shallincluding, without prejudice to limitation, all losses, liabilities and reasonable and proper costs incurred as a result of defending or settling any other right claim alleging any such liability) suffered or remedy which may be available to the Buyer, pay to incurred by the Buyer (or to the relevant a member of the Buyer’s Group) on demand -
(a) by reason of any breach by the amount by which the value Seller of any of the Shares Warranties provided however that the Seller shall not be liable for indirect or consequential loss.
8.4 Subject to the matters disclosed in the Disclosure Letter, the Warranties shall not be qualified or in any way affected by any investigation made by the Buyer or by its knowledge of any information which it may have received or been given or which it may have actual or implied or constructive notice of prior to the signing of this agreement.
8.5 The Buyer acknowledges that the Seller is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member entering into this agreement in reliance upon each of the Buyer’s Group Warranties and that the Buyer’s Warranties are given with the intention of inducing the Seller to enter into this agreement. Accordingly, the position it would have been Buyer represents and warrants to the Seller that each of the statements set out in had such Warranty been part 2 of schedule 3 is true and accurate in all respects. The Warranties shall be separate and independent and shall not misleading; together with be limited by reference to any other paragraph or sub-paragraph of part 2 of schedule 3 or by any other provision of this agreement. The Buyer shall, indemnify and hold harmless the amount Seller (and members of the Buyer’s Group) from and against all costs and expenses (including legal and other professional fees and third party’s actions, proceedings, losses, costs, expenses, the costs of management time damages, claims and demands and all other consequential losses whether directly liabilities whatsoever (including, without limitation, all losses, liabilities and reasonable and proper costs incurred as a result of defending or indirectly arisingsettling any claim alleging any such liability) suffered or incurred directly by the Seller (or indirectly a member of the Seller’s Group) by reason of any third party claims resulting from any material breach by the Buyer of any of the Buyer’s Warranties.
8.6 The Guarantors acknowledge that the Buyer is entering into this agreement in reliance upon each of the Guarantors’ Warranties set out in part 3 of schedule 3 and that the Guarantors’ Warranties are given with the intention of inducing the Buyer to enter into this agreement. Accordingly, the Guarantors represent and warrant to the Buyer that each of the statements set out in part 3 of schedule 3 is true and accurate in all respects. The Guarantors’ Warranties shall be separate and independent and shall not be limited by reference to any other paragraph or sub-paragraph of part 3 of schedule 3 or by any other provision of this agreement. The Guarantors shall indemnify and hold harmless the Buyer (and members of the Buyer’s Group) from and against all third party’s actions, proceedings, losses, costs, expenses, damages, claims and demands and all other liabilities whatsoever (including, without limitation, all losses, liabilities and reasonable and proper costs incurred as a result of defending or settling any claim alleging any such liability) suffered or incurred by the Buyer (or any a member of the Buyer’s Group) or by reason of any third party claims resulting from any material breach by the Company which it would not have incurred had such Warranty been true and not misleadingGuarantors of any of the Guarantors’ Warranties.
8.7 Each of the Sellers hereby waives any right which it may have The Warranties shall remain in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letterfull force and effect notwithstanding Completion.
Appears in 1 contract
Sources: Purchase Agreement (Ediets Com Inc)
Warranties. 8.1 6.1 The Sellers represent Grantor hereby represents and warrant jointly and severally warrants to the Buyer in the terms set out in Schedule 5 Grantee and each party acknowledges his successors and assigns that the terms Warranties are true and accurate in all respects as at the date of Schedule 5 this Deed and this clause 8 are in will continue to be so throughout the circumstances fair Option Period up to and reasonableincluding the time of Completion.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 6.2 Each of the Warranties is a separate representation without prejudice to any other Warranty and, except here expressly or warranty and otherwise stated, no provision in any Warranty shall not be restricted in its govern or limit the extent or application by of any other provision in any Warranty. The Grantor hereby agrees that the terms Grantee shall treat each of the Warranties as a condition of this Deed.
6.3 The Grantor hereby agrees to fully indemnify and keeps the Grantee and his assigns fully indemnified on demand from and against any depletion of any tangible assets, all losses, costs and expenses (including legal expenses) which the Grantee may incur or sustain from or in consequence of any of the other Warranties not being correct or by fully complied with. This indemnity shall be without prejudice to any other term of this Agreementthe rights and remedies of the Grantee and their assigns in relation to any such breach of Warranties and all such rights and remedies are hereby expressly reserved.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) 6.4 If it shall immediately disclose to the Buyer in writing be found at any matter which becomes known to it before time after Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If that any of the Warranties shall prove to be untrue is not true, correct and accurate or misleadingis not as represented, warranted or undertaken and:
(1) the effect thereof is that the value of some assets of any member of the Group including, without limitation, the Sellers shallvalue of any asset stated in the Management Accounts is less than its value would have been had there been no such breach or the matter warranted were as warranted; or
(2) any member of the Group has incurred or is under any liability or contingent liability which would not have been incurred if such matter were as represented or warranted or the relevant undertaking were performed; or
(3) the effect thereof is that the amount of a liability of any member of the Group is higher than its amount would have been had there been no such breach or the matter warranted were as warranted, then, without prejudice to any other right provisions of this Deed, the Grantor shall indemnify the Grantee on demand on a full indemnity basis, and holds them harmless from and against all liabilities, damages, costs, claims, reduction in net consolidated assets or remedy increase in net consolidated liabilities and all reasonable expenses which the Grantee may be available to sustain, suffer, or incur as a result of any of the Buyer, foregoing and the Grantor shall pay to the Buyer (or to Grantee on demand the relevant member full amount of any such loss as aforesaid in immediately available funds.
6.5 The Warranties shall survive Completion and the rights and remedies of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have Grantee in respect of any misrepresentationbreach of the Warranties shall not be affected by Completion or by the Grantee rescinding, inaccuracy or omission in failing to rescind this Deed, or from failing to exercise or delaying the exercise of any information right or advice supplied remedy, or given by any directorother event or matter whatsoever, officer except a specific and duly authorised written waiver or employee release and no single or partial exercise of the Company for the purpose any right or remedy shall preclude any further or other exercise.
6.6 The Grantee shall be entitled to take action both before and after Completion in respect of assisting the Sellers to give any breach or non-fulfillment of any of the Warranties and Completion shall not in any way constitute a waiver of any right of the Grantee.
6.7 The Grantor undertakes in relation to any Warranty which refers to the knowledge, information or belief of the Grantor that they have made full enquiry into the subject matter of that Warranty which are reasonable in all circumstances and that they do not have the knowledge, information or belief that the subject matter of that Warranty may not be correct, complete or accurate.
6.8 The Grantor shall immediately inform the Grantee in writing of any fact, matter, event or circumstance which renders any of the Warranties untrue, inaccurate or misleading or will give rise to prepare a breach of any of the Disclosure LetterWarranties.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter Each Debtor warrants that: (‘Disclosed’i) but no financing statement (other information of than any which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or may have been filed on behalf of the Buyer shall modify or discharge Collateral Agent for the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) benefit of the Law of Property (Miscellaneous ProvisionsBenefited Parties) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of covering any of the Collateral is on file in any public office, other Warranties than financing statements related to Permitted Liens or Liens that have been terminated (and such Debtor agrees to use commercially reasonable efforts to promptly terminate all financing statements relating to such terminated Liens); (ii) such Debtor is and will be the lawful owner of all Collateral, free of all liens and claims whatsoever, other than the security interest hereunder and Permitted Liens, with full power and authority to execute and deliver this Agreement, to perform such Debtor’s obligations hereunder and to subject the Collateral to the security interest hereunder; (iii) all information with respect to Collateral and Account Debtors set forth in any schedule, certificate or other writing furnished in connection with this Agreement or any Financing Agreement by such Debtor to the Collateral Agent or any other Benefited Party will be true and correct in all material respects as of the date furnished; (iv) such Debtor’s true legal name as registered in the jurisdiction in which such Debtor is organized or incorporated, state of organization or incorporation, federal employer identification number, organizational identification number as designated by the state of its organization or incorporation, chief executive office and principal place of business are as set forth on Schedule 1 (and, except as set forth on Schedule 1, such Debtor has not maintained its chief executive office and principal place of business at any other location at any time after October 1, 1998); (v) each other location within the United States where such Debtor maintains a place of business or has any Goods is set forth on Schedule II hereto; (vi) except as disclosed on Schedule III, such Debtor is not now known and during the five years preceding the date hereof has not previously been known by any other term trade name; (vii) except as disclosed on Schedule III, during the five years preceding the date hereof, such Debtor has not been known by any legal name different from the one set forth on the signature page of this Agreement.
8.5 Each , nor has such Debtor been the subject of any merger or other corporate reorganization; (viii) Schedule IV hereto contains a complete listing of all of such Debtor’s Intellectual Property which is registered under applicable registration statutes and (ix) upon the filing of financing statements on Form UCC-1 in the appropriate governmental offices, the Collateral Agent will have a valid lien upon and perfected security interest in all of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference Collateral in Schedule 5 to the date of this Agreement were which a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim security interest can be perfected by filing under the Warranties or which would materially affect the willingness of a prudent purchaser for value UCC (subject only to purchase the Shares on the terms of this AgreementPermitted Liens).
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and severally A. All units of the Product delivered to the Buyer Distributor pursuant to this Agreement shall be of good and merchantable quality, free from defects in the terms set out in Schedule 5 material and each party acknowledges that the terms of Schedule 5 workmanship and this clause 8 are in the circumstances fair and reasonablereasonably fit for their intended purpose.
8.2 B. THE MANUFACTURER HEREBY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES AND GUARANTIES WITH RESPECT TO UNITS OF THE PRODUCT PURCHASED HEREUNDER, WHETHER WRITTEN, ORAL, IMPLIED OR INFERRED BY TRADE, CUSTOM OR PRACTICE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS PROVIDED IN PARAGRAPH "A" OF THIS ARTICLE "15" OF THIS AGREEMENT. THE MANUFACTURER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES OF ANY KIND, WHETHER DIRECT, CONSEQUENTIAL OR OTHERWISE RELATING TO THE PERFORMANCE OF ANY UNIT OF THE PRODUCT OR BY ANY FAILURE OF THE MANUFACTURER. IN NO EVENT SHALL THE MANUFACTURER'S LIABILITY TO ANY USER OF THE PRODUCT EXCEED THE PURCHASE PRICE FOR THAT PRODUCT PURSUANT TO THIS AGREEMENT. 63
C. The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable Distributor shall inspect the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf units of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2Product within seven (7) days after delivery of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each shipment containing such units of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by Product. If the terms Distributor, prior to the expiration of such seven (7) day period rejects any units of the other Warranties or Product because such units of the Product do not conform to any agreed upon specifications, the Manufacturer may substitute a like quantity of conforming units of the Product. The Distributor may reject any shipment of non-conforming units of the Product only within seven (7) days after delivery of such shipment, by any other term notice to the Manufacturer, pursuant to Paragraph "C" of Article "28" of this Agreement.
8.5 Each , stating the reason for rejection with specificity. Failure to timely reject or give proper notice of rejection shall be deemed to constitute acceptance of such shipment. Properly rejected units of the Sellers undertakes with Product shall, in the Buyer that -
(a) each of the Warranties shall remain true Manufacturer's sole and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give riseabsolute discretion, to a claim under the Warranties or which would materially affect the willingness be exercised by written notice pursuant to Paragraph "C" of a prudent purchaser for value to purchase the Shares on the terms Article "28" of this Agreement, either (i) be returned to the Manufacturer at the Manufacturer's expense or (ii) be destroyed by the Distributor at the Manufacturer's expense.
8.6 D. If any of shipping date is specified, such date represents a good faith estimate by the Warranties Manufacturer. In no event shall prove to the Manufacturer be untrue responsible for a delay in shipment or misleading, the Sellers shall, without prejudice for damages or losses attributable to any other right such delay.
E. The Distributor may not cancel or remedy which may be available assign any order given by it to the Buyer, pay to the Buyer (Manufacturer.
F. Non delivery or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly default by the Buyer (Manufacturer as to any shipment shall not relieve the Distributor from its obligation to accept and pay for any subsequent or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingprior installment.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 12.1 The Sellers represent and warrant jointly and severally Vendor warrants to the Buyer Purchaser in the terms of the Warranties and so that the remedies of the Purchaser in respect of any breach of any of the Warranties shall continue to subsist notwithstanding completion of the sale and purchase hereunder.
12.2 Save in the case of any fraudulent misrepresentation, the Purchaser agrees that the Purchaser will have no remedy against the Vendor, and the Vendor shall have no liability of whatsoever nature to the Purchaser, in respect of any statement of fact or opinion whatsoever, including any untrue or misleading statement, warranty or representation, express or implied, made to the Purchaser or its agents, officers or employees upon which the Purchaser relied or may have relied in entering into this agreement and that the Purchaser's sole remedy (save in the case of any fraudulent misrepresentation) is for breach of contract in respect of the Warranties, undertakings, covenants or indemnities expressly set out in Schedule 5 and each party acknowledges that this agreement subject to the terms of Schedule 5 and limitations contained in this clause 8 are in the circumstances fair and reasonableagreement.
8.2 The Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 12.3 Each of the Warranties is shall be construed as a separate representation or warranty Warranty and (save as expressly provided to the contrary) shall not be restricted in its extent or application limited by the terms of any of the other Warranties or by any other term of this AgreementWarranties.
8.5 Each 12.4 Save in the case of fraud or wilful non-disclosure by the Sellers undertakes with Vendor, the Buyer that -
(a) each Vendor shall be under no liability in respect of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness and any such claim shall be wholly barred and unenforceable unless written notice of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any such claim setting out full details of the Warranties shall prove relevant claim (including the grounds on which such claim is based and the amount claimed to be untrue or misleading, payable in respect thereof) shall have been served upon the Sellers shall, without prejudice Vendor by the Purchaser by not later than 5.00 p.m. up to any other right or remedy which may be available to twelve months after the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -Completion Date and either:-
(a) the amount by which the value payable in respect of the Shares is less than it would have relevant claim has been had agreed by the Vendor within 3 months of the date of such Warranty been true and not misleadingwritten notice; or
(b) legal proceedings have been instituted in respect of such claim by the amount necessary to put due service of process on the Company and any member Vendor within 3 months of the Buyer’s Group into later of:-
(i) the position it would have been date of such written notice; and
(ii) in had such Warranty been true and not misleading; together the event that the Vendor shall make a request pursuant to clause 12.10(b)(i) in respect thereof the date on which judgment is given by a court of competent jurisdiction or the date settlement is reached (with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member consent of the Buyer’s GroupVendor) in respect of such proceedings or the Company date on which it would not have incurred had such Warranty been true the Vendor and not misleadingthe Purchaser agree that proceedings or other action against the third party shall be abandoned.
8.7 Each 12.5 Save in the case of fraud or wilful non-disclosure the Sellers hereby waives any right which it may have Vendor shall be under no liability in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee claim under the Warranties:-
(a) where the liability of the Company Vendor in respect of that claim would (but for this paragraph) have been less than (pound)30,000; or
(b) unless and until and only to the purpose extent that the liability in respect of assisting that claim (not being a claim for which liability is excluded under clause 12.5(a) above) when aggregated with the Sellers to give any liability of the Vendor in respect of all other claims shall exceed (pound)100,000.
12.6 Save in the case of fraud or wilful non-disclosure the aggregate liability of the Vendor in respect of all such claims under this agreement shall not in any circumstances exceed (pound)500,000.
12.7 The Vendor shall be under no liability in respect of any claim under the Warranties if the facts or circumstances giving rise thereto are clearly disclosed or referred to prepare in the Disclosure LetterLetter or provided for or stated to be exceptions under the terms of this agreement.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer that each of the Warranties is true and accurate in all respects and is not misleading at the date of this Agreement. The liability of the Sellers for breach of any Warranty shall be several. The Sellers undertake to the Buyer that, in the event of any claim being made against them arising out of or relating to this Agreement, they will not make any claim against the Company or any of the Subsidiaries or against any director, officer, employee or adviser of the Company or of any of the Subsidiaries on which or on whom they may have relied before agreeing to any terms of this Agreement or authorising any statement in the Disclosure Letter. The Sellers shall not be liable for any Claim for breach of Warranties, save for those set out under paragraph 1.1 (the Sellers), 3.1 (shares), 3.3 (share ownership), or 3.4 (share and loan capital) of Schedule 5, to the extent that the events or circumstances giving rise thereto have been Disclosed in Schedule 5 the Disclosure Letter. The Warranties: are given separately and each party acknowledges that independently and, unless expressly provided to the contrary, are not limited or restricted by reference to, or inference from, the terms of Schedule 5 any other Warranty or item of this Agreement; where qualified by the knowledge, information, belief or awareness of the Sellers, unless expressly provided to the contrary, are deemed to refer to the actual (as opposed to constructive or imputed) knowledge, information, belief or awareness of the Sellers after due and this clause 8 are careful enquiries by the Sellers in respect of the relevant subject matter of such Warranties; and apply to each of the Subsidiaries as well as to the Company as if references to “the Company” included a corresponding reference to the Subsidiaries (and each of them severally). None of the Warranties nor any provision in the circumstances fair and reasonable.
8.2 The Warranties are given subject Tax Covenant shall be, or shall be deemed to matters fullybe, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information qualified, modified or discharged by reason of which the Buyer has actual, constructive or imputed knowledge and no any investigation or enquiry inquiry made by or on behalf of the Buyer and no information relating to the Company or to any of the Subsidiaries of which the Buyer, its agents or advisers have knowledge (whether actual, imputed or constructive), other than (in the case of the Warranties) by reason of its being Disclosed in the Disclosure Letter in accordance with this Agreement, shall modify prejudice any claim which the Buyer shall be entitled to bring or discharge shall operate to reduce any amount recoverable by the Sellers’ liability Buyer under this Agreement. No Claim may be made by the Buyer under the Warranties in any way and to the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which extent that the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer had actual knowledge prior to Completion that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be was untrue or misleading, misleading or had not been complied with. The provisions of Schedule 6 shall (where relevant) apply to limit the liability of the Sellers shall, without prejudice to under the Warranties and the Tax Covenant provided that the provisions of Schedule 6 shall not apply in respect of any other right or remedy which may be available to the Buyer, pay to the Buyer claim arising out (or to the relevant member extent it is increased) of any fraud or fraudulent misrepresentation or wilful non-disclosure on the part of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingSellers.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and 7.1 Each of the Purchasers severally warrants to the Buyer Seller as at the date of this Agreement in the terms set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are given subject 1 to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 7.2 The Seller and NYMAGIC jointly and severally warrant to each of the Purchasers as at the date of this Agreement in the terms set out in Part A of Schedule 2 to this Agreement and the Seller warrants to each of the Purchasers as at the date of this Agreement in the terms set out in Part B of Schedule 2 to this Agreement.
7.3 The Seller accepts that the Purchasers are entering into this Agreement in reliance upon each of the Warranties.
7.4 Each of the Warranties is shall be construed as a separate representation or warranty and (save as expressly provided to the contrary) shall not be limited or restricted in its extent by reference to or application by inference from the terms of any of the other Warranties Warranty or by any other term of this Agreement.
8.5 Each 7.5 Should any sum become payable in respect of the Sellers undertakes with the Buyer that -
(a) each a breach of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference Warranty in Schedule 5 relation to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value sale of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly shall be payable by the Buyer (or any member of Seller to the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadingPurchasers according to their respective Relevant Proportion.
8.7 Each of the Sellers hereby waives 7.6 The Purchasers shall not be entitled to recover any right which it may have amount pursuant to this Agreement in respect of any misrepresentation, inaccuracy claim to the extent that the Purchasers or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose have already recovered an amount in respect of assisting the Sellers to give such a claim under any of the Warranties or to prepare the extent that recovery has already been made under this Agreement or any of the other Transaction Documents in respect of the same subject matter.
7.7 In relation to each Purchaser’s duty to mitigate any loss, such Purchaser shall not be in breach of such duty to the extent that any step or action was taken or omitted to be taken or course of conduct pursued or omitted to be pursued in compliance with any order, direction or mandatory request of Lloyd’s or the Financial Services Authority (or, in either case, any replacement or successor regulatory body).
7.8 If the Seller pays an amount in discharge of any claim under this Agreement and the Purchasers or the Company subsequently recover (whether by payment, discount, credit, relief or otherwise) from a third party a sum which is referable to the subject matter of the claim, the Purchasers shall pay or procure payment to the Seller to the extent that they have not already accounted to the Seller for such sum under one of the other provisions of this Agreement and such sum has not been taken into account in quantifying any claim made by the Purchasers under this Agreement an amount equal to (i) the sum recovered from the third party less any reasonable costs and expenses incurred in obtaining such recovery or any Taxation payable in respect thereof (or would have been payable but for the availability of any Relief) or (ii) if less, the amount previously paid by the Seller to the Purchasers.
7.9 The Seller shall have no liability under or in relation to this Agreement if and to the extent that the fact, event or circumstance giving rise thereto has been fully and fairly disclosed in the Disclosure Letter.
7.10 The Seller shall have no liability under or in relation to this Agreement:
Appears in 1 contract
Warranties. 8.1 The Sellers represent and warrant jointly and severally 6.1 Subject to the Buyer provisions of this clause 6, the Seller warrants to the Purchaser as set out in Part 1 of Schedule 2 (the terms “Seller’s Warranties”).
6.2 Subject to the provisions of this clause 6, the Parent warrants to the Purchaser as set out in Part 2 of Schedule 2 (the “Parent’s Warranties”).
6.3 Subject to the provisions of this clause 6, the Purchaser warrants to the Seller as set out in Schedule 5 3 (the “Purchaser’s Warranties”).
6.4 Each of the warranties set out in Schedules 2 and each party acknowledges 3, other than those which by their terms are given only at a specified date (which are deemed to be given only at such specified date), are given as of the Execution Date by reference to the circumstances existing at that time and shall be repeated as at the Completion Date by reference to the circumstances existing at that time.
6.5 Each of the Seller’s Warranties and the Parent’s Warranties are qualified by matters as disclosed in relation to such Seller’s Warranty or Parent’s Warranty, as applicable, under the terms of Schedule 5 the Disclosure Letter.
6.6 Neither Party shall (and in the case of the Seller shall procure that the Company shall not) do, or omit to do, any act, or authorise or omit to authorise, or cause or permit anything to be done over which it has control or which it can otherwise by the exercise of any right or power reasonably prevent from being done, which would be inconsistent with or in breach of any representation, warranty or undertaking given by it in this clause 8 are in 6 if the same were to be repeated immediately prior to the Completion Date by reference to circumstances fair and reasonablethen existing.
8.2 6.7 The Seller’s Warranties, the Parent’s Warranties are given subject to matters fullyand the Purchaser’s Warranties shall survive until the earlier of: (a) the expiry of six (6) months from the Completion Date; and (b) the date 90 days after the latest of (i) the Completion Date, fairly and accurately disclosed in sufficient detail to enable (ii) the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of date on which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf shareholders of the Buyer Parent approve the dissolution and liquidation of the Parent, or (iii) the date on which the Parent files a petition in bankruptcy under Chapter 7 or Chapter 11 of the United States Bankruptcy Code.
6.8 Notwithstanding any other provision of this Agreement, a Party shall modify not under any circumstances be liable for any Consequential Loss incurred or discharge suffered by the Sellers’ liability under the Warranties other Party or any of its Affiliates arising out of or in any way and connected with this Agreement.
6.9 Until Completion, each Party shall notify the provisions other Party promptly after such Party obtains actual knowledge that any warranty of section 6(2) such other Party contained in Schedule 2 or 3, as the case may be, of this Agreement is untrue in any material respect or will be untrue in any material respect as of the Law Completion Date or that any covenant or agreement to be performed or observed by such other Party prior to or on the Completion Date has not been so performed or observed in any material respect.
6.10 If at any time before Completion, it becomes apparent that there has been a material breach of Property a Seller’s Warranty, the Purchaser may, if such breach has not been fully remedied by the Seller on the date falling one Business Day prior to the anticipated Completion Date, without prejudice to any other rights it may have in relation to the breach, terminate this Agreement by notice to the Seller in accordance with clause 7.1(b) or proceed to Completion and waive any claim for damages of such breach in this clause 6.10.
6.11 Warranties qualified by the expression “so far as the Seller is aware” (Miscellaneous Provisionsor any similar expression) are deemed to be given to the actual knowledge of, as at the date of this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President Eastern Operations, ▇▇▇▇ are hereby excluded▇▇▇▇▇▇▇▇▇▇ Vice President Engineering and Business Development, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President & Chief Financial Officer, and ▇▇▇▇▇ ▇▇▇▇, Vice President and General Counsel.
8.3 In so far as 6.12 Neither the Warranties relate to matters Seller nor the Parent shall not be liable for any breach of fact, they shall constitute representations in reliance upon which the Buyer has entered into any provision of this Agreement, or in respect of its subject matter, to the extent that such breach is occasioned directly by the Seller or the Parent doing any act or thing at the written request of the Purchaser.
8.4 Each 6.13 The Purchaser agrees and undertakes that in the absence of the Warranties is a separate representation or warranty wilful deception it has no rights against and shall not be restricted in its extent or application by the terms of make any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and against any member of the BuyerSeller’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expensesor any present or former employee, the costs of management time and all other consequential losses whether directly director, agent or indirectly arising) incurred directly or indirectly by the Buyer (officer or any member of the BuyerSeller’s Group) , in each case other than the Parent or the Company which it would not have incurred had such Warranty been true and not misleadingSeller, in connection with this Agreement or its subject matter.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Harvest Natural Resources, Inc.)
Warranties. 8.1 The Sellers represent and warrant jointly and severally to the Buyer that each of the Warranties is true and accurate in all respects and is not misleading at the date of this Agreement. The liability of the Sellers for breach of any Warranty shall be several. The Sellers undertake to the Buyer that, in the event of any claim being made against them arising out of or relating to this Agreement, they will not make any claim against the Company or any of the Subsidiaries or against any director, officer, employee or adviser of the Company or of any of the Subsidiaries on which or on whom they may have relied before agreeing to any terms of this Agreement or authorising any statement in the Disclosure Letter. The Sellers shall not be liable for any Claim for breach of Warranties, save for those set out under paragraph 1.1 (the Sellers), 3.1 (shares), 3.3 (share ownership), or 3.4 (share and loan capital) of Schedule 5, to the extent that the events or circumstances giving rise thereto have been Disclosed in Schedule 5 the Disclosure Letter. The Warranties: are given separately and each party acknowledges that independently and, unless expressly provided to the contrary, are not limited or restricted by reference to, or inference from, the terms of Schedule 5 any other Warranty or item of this Agreement; where qualified by the knowledge, information, belief or awareness of the Sellers, unless expressly provided to the contrary, are deemed to refer to the actual (as opposed to constructive or imputed) knowledge, information, belief or awareness of the Sellers after due and this clause 8 are careful enquiries by the Sellers in respect of the relevant subject matter of such Warranties; and apply to each of the Subsidiaries as well as to the Company as if references to “the Company” included a corresponding reference to the Subsidiaries (and each of them severally). None of the Warranties nor any provision in the circumstances fair and reasonable.
8.2 The Warranties are given subject Tax Covenant shall be, or shall be deemed to matters fullybe, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information qualified, modified or discharged by reason of which the Buyer has actual, constructive or imputed knowledge and no any investigation or enquiry inquiry made by or on behalf of the Buyer and no information relating to the Company or to any of the Subsidiaries of which the Buyer, its agents or advisers have knowledge (whether actual, imputed or constructive), other than (in the case of the Warranties) by reason of its being Disclosed in the Disclosure Letter in accordance with this Agreement, shall modify prejudice any claim which the Buyer shall be entitled to bring or discharge shall operate to reduce any amount recoverable by the Sellers’ liability Buyer under this Agreement. No Claim may be made by the Buyer under the Warranties in to the extent that the Buyer had actual knowledge prior to Completion that any way of the Warranties was untrue or misleading or had not been complied with. The provisions of Schedule 6 shall (where relevant) apply to limit the liability of the Sellers under the Warranties and the Tax Covenant provided that the provisions of section 6(2Schedule 6 shall not apply in respect of any claim arising out (or to the extent it is increased) of any fraud or fraudulent misrepresentation or wilful non-disclosure on the Law part of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In the Sellers. Buyer Warranties The Buyer warrants to each of the Sellers, that each of the warranties set out in this Clause 6.8 is true and accurate in all respects and is not misleading at the date of this Agreement: The Buyer is a company duly incorporated and validly existing under the laws of the United Kingdom. No order has been made, petition presented or meeting convened for the purpose of considering a resolution for the winding-up of the Buyer or for the appointment of any provisional liquidator of the Buyer. No receiver or administrator has been appointed in respect of the whole or any part of any of the property, assets and/or undertaking of the Buyer. The Buyer’s entry into and performance of the Agreement does not constitute any breach of or default under any contractual, governmental or public obligation binding upon it. The Buyer is not engaged in any litigation or arbitration proceedings which might have an effect upon the Buyer’s capacity or ability to perform its obligations under this Agreement and so far as the Warranties relate to matters of factBuyer is aware, they shall constitute representations in reliance upon which the no such legal or arbitration proceedings have been threatened against it. The Buyer has entered full power and authority and has taken all necessary corporate action to enable it effectively to enter into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of perform this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives riseall agreements entered into, or might give riseto be entered into, pursuant to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shalland such agreements when executed, without prejudice to any other right or remedy which may be available to the Buyerwill constitute valid, pay to binding and enforceable obligations on the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together accordance with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.their respective terms. • SPECIFIC INDEMNITIES
Appears in 1 contract
Sources: Credit Agreement
Warranties. 8.1 5.1 The Sellers represent and warrant jointly and severally to Buyer is entering into this agreement on the Buyer in basis of, the terms Warranties set out in Schedule 5 and each party acknowledges that the terms of Schedule 5 and this clause 8 are in the circumstances fair and reasonable4 (Warranties).
8.2 5.2 The Warranties are given subject Sellers warrant to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In so far as the Warranties relate to matters of fact, they shall constitute representations in reliance upon which the Buyer has entered into this Agreement.
8.4 Each of the Warranties is a separate representation or warranty and shall not be restricted in its extent or application by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain Warranty is true and accurate and not misleading on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference agreement except as Disclosed.
5.3 Without prejudice to the Completion Date; and
(b) it shall immediately disclose to right of the Buyer in writing to claim on any matter which becomes known other basis under this Agreement or take advantage of any other remedies available to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If , if any of the Warranties shall prove Warranty is breached or proves to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, shall pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -demand:
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in if the Warranty had such Warranty not been true and breached or had not been untrue, inaccurate or misleading; together with the amount of and
(b) all costs and expenses (including including, without limitation, damages, legal and other professional fees and expensescosts, the costs of management time penalties, expenses and all other consequential losses whether directly or indirectly arising) properly and reasonably incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which as a result of such breach or of the Warranty being untrue, inaccurate or misleading (but excluding any sum in respect of management time). A payment made in accordance with the provisions of this clause 5.3 shall include any amount necessary to ensure that, after any Taxation of the payment, the Buyer is left with the same amount it would have had if the payment was not have incurred had such Warranty subject to Taxation. PROVIDED however that in calculating the amount of any liability of the Sellers for breach of any of the Warranties, the amount of any Claim shall be reduced to the extent that the Buyer and/or the Company has been true and not misleadingable to obtain Tax relief in respect of the subject matter of the Claim.
8.7 5.4 Warranties given so far as the Sellers are aware are deemed to be given to the best of the knowledge, information and belief of the Sellers after they have made all reasonable and careful enquiries and the knowledge, information and belief of any one of the Sellers shall be imputed to the remaining Seller and it shall not be a defence that the Sellers did not appreciate the relevance or significance of any particular matter.
5.5 Each of the Sellers hereby waives Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any right which it may have other Warranty or any other provision in respect this agreement.
5.6 The Warranties in paragraph 1 and 2.2 to 2.5 inclusive of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or Schedule 4 are given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any on a several basis. For the avoidance of doubt all other Warranties are given by the Warranties or to prepare the Disclosure LetterSellers on a joint and several basis.
Appears in 1 contract
Sources: Share Purchase Agreement (Micrus Endovascular Corp)
Warranties. 8.1 The Sellers represent and warrant jointly and 11.1 Each Party severally warrants to each other Party, in relation to itself, that the Buyer in the terms Warranties set out in Part 1 of Schedule 5 3 are true and each party acknowledges correct in all respects as at the Original Date, provided that the terms Warranty in paragraph 1.7 in Part 1 of Schedule 5 and this clause 8 are in the circumstances fair and reasonable.
8.2 The Warranties are 3 shall only be given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇▇▇ are hereby excludedas at the Original Date and shall not be deemed to be repeated after the Original Date under Clause 11.4.
8.3 In so far as 11.2 Each Rollover Shareholder warrants to the Consortium in relation to itself only on a several basis only (not jointly) that the Warranties relate set out in Part 2 of Schedule 3 are true and correct in all respects as at the Original Date.
11.3 Each of EquityCo, MidCo, ▇▇▇▇▇ and BidCo warrants to matters the Rollover Shareholders that the Warranties set out in Part 3 of factSchedule 3 are true and correct in all respects as at the Original Date.
11.4 Each Subscriber severally warrants to EquityCo, they in relation to itself, that the Warranties set out in Part 4 of Schedule 3 are true and correct in all respects as at the Original Date.
11.5 The Warranties given pursuant to:
(a) Clauses 11.1, 11.3 and 11.4 are deemed to be repeated immediately before each Completion; and
(b) Clause 11.2 are deemed to be repeated immediately before the Rollover Completion, in each case, by reference to the facts and circumstances then existing, and any reference made to the Original Date (whether express or implied) in such Warranties shall constitute representations be construed, in reliance upon relation to such repetition, as a reference to the relevant date on which the Buyer has entered Warranties are repeated.
11.6 Each Party acknowledges that the other Parties are entering into this AgreementAgreement on the basis of and in express reliance on the Warranties.
8.4 11.7 Each of the Warranties is a separate representation or warranty and independent and, unless otherwise specifically provided, shall not be restricted in its extent or application limited by the terms of any of the other Warranties or by reference to any other representation, warranty or term of this Agreement.
8.5 11.8 Each Party (the “Warrantor”) undertakes to the Parties to whom they give the Warranties (the “Receiving Party”) (without limiting any other rights of any Party in any way including rights to damages for breach of any Warranty or on any other basis) that, if there is a breach of any Warranty given by it under this Clause 11, the Sellers undertakes Warrantor shall pay or procure payment in cash to the Receiving Party on demand a sum equal to the aggregate of all Losses suffered or incurred by the Receiving Party or any of their respective Affiliates directly as a result of or in connection with the Buyer that -
(a) each breach of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this AgreementWarranty.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right or remedy which may be available to the Buyer, pay to the Buyer (or to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleading.
8.7 Each of the Sellers hereby waives any right which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for the purpose of assisting the Sellers to give any of the Warranties or to prepare the Disclosure Letter.
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Sources: Deed of Amendment and Restatement
Warranties. 8.1 6.1 The Sellers represent Buyer is entering into this agreement on the basis of, and warrant jointly and severally in reliance on, the Warranties.
6.2 The Seller warrants to the Buyer in that each Warranty is true on the terms set out in Schedule 5 and each party acknowledges that the terms date of Schedule 5 and this clause 8 are in the circumstances fair and reasonableagreement except as Disclosed.
8.2 The 6.3 Warranties are given subject to matters fully, fairly and accurately disclosed in sufficient detail to enable qualified by the Buyer to understand their nature and scope in the Disclosure Letter (‘Disclosed’) but no other information of which the Buyer has actual, constructive or imputed knowledge and no investigation or enquiry made by or on behalf of the Buyer shall modify or discharge the Sellers’ liability under the Warranties in any way and the provisions of section 6(2) of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ are hereby excluded.
8.3 In expression so far as the Warranties relate Seller is aware or to matters the Seller’s knowledge (or any similar expression) are deemed to be given to the best of factthe knowledge, they shall constitute representations in reliance upon which information and belief of the Buyer Seller after it has entered into this Agreementmade all reasonable enquiries.
8.4 6.4 Each of the Warranties is a separate representation or warranty and shall and, unless otherwise specifically provided, is not be restricted in its extent or application limited by the terms of any of the other Warranties or by any other term of this Agreement.
8.5 Each of the Sellers undertakes with the Buyer that -
(a) each of the Warranties shall remain true and accurate on each day up to and including the Completion Date as if any express or implied reference in Schedule 5 to the date of this Agreement were a reference to the Completion Date; and
(b) it shall immediately disclose to the Buyer in writing any matter which becomes known to it before Completion and which gives rise, or might give rise, to a claim under the Warranties or which would materially affect the willingness of a prudent purchaser for value to purchase the Shares on the terms of this Agreement.
8.6 If any of the Warranties shall prove to be untrue or misleading, the Sellers shall, without prejudice to any other right Warranty or remedy which may be available any other provision in this agreement; provided, however, that notwithstanding any provision in this agreement to the Buyercontrary, pay any matter Disclosed for any purpose shall be deemed Disclosed for all purposes to the Buyer (or extent that such disclosure amounts to the relevant member of the Buyer’s Group) on demand -
(a) the amount by which the value of the Shares is less than it would have been had such Warranty been true and not misleading; or
(b) the amount necessary to put the Company and any member of the Buyer’s Group into the position it would have been in had such Warranty been true and not misleading; together with the amount of all costs and expenses (including legal and other professional fees and expenses, the costs of management time and all other consequential losses whether directly or indirectly arising) incurred directly or indirectly by the Buyer (or any member of the Buyer’s Group) or the Company which it would not have incurred had such Warranty been true and not misleadinga fair disclosure.
8.7 Each of the Sellers hereby 6.5 The Seller waives and may not enforce any right which it he may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by any director, officer or employee of the Company for or its officers or employees in enabling the purpose of assisting the Sellers Seller to give any of the Warranties or to prepare the Disclosure LetterLetter unless such right arises as a result of fraud or deliberate non-disclosure or dishonest deception.
6.6 The Seller and the Guarantor are each entering into this agreement on the basis of, and in reliance on, the Buyer’s Warranties.
6.7 The Buyer warrants to the Seller and the Guarantor that each Buyer’s Warranty is true on the date of this agreement.
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