Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares: (a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller. (b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws). (c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller. (d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement. (e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement. (f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. (g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares. (h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted. (i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Tafazzoli Farshid), Stock Purchase Agreement (Cruz Ralph L), Stock Purchase Agreement (Cruz William R)
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has the full power and authority to execute conduct its business and deliver this Agreement issue the Special Common Shares and to consummate that the transactions to be consummated Special Common Shares are free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon the Common Stock being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for the allotment of the Special Common Shares to Purchaser hereunder, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
E. Seller has full rightconducted its business in compliance with all applicable federal, power state and authority to transfer local laws, regulations and ordinances.
F. Seller has not received any notice that it is infringing upon the Shares to be sold by Seller to the Purchasers as contemplated hereinresearch, free development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) G. There is (and has not been since its inception) no lawsuitclaim, litigation, action, complaintsuit or proceeding, claimadministrative or judicial, demand, notice, hearing, arbitration, investigation, inquiry pending or any other proceedingthreatened against or affecting Seller, at law or in equity or before any administrative foreign, federal, state, local or enforcement agency other governmental authority, including, without limitation, any claim, proceeding, or body (a "Lawsuit") pending litigation for the purpose of enjoining or threatenedpreventing the consummation of this Agreement, affectingor the transactions contemplated hereby, directly or indirectlyotherwise claiming this Agreement, or any of the Shares transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to be sold by Seller and Seller does not know of Seller's knowledge is there any valid basis for upon which any such Lawsuitclaim, litigation, action, suit or proceeding could be brought or initiated. There Seller is no not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction, injunction or decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-any governmental authority, agency and no replevins, attachments, or instrumentality that restricts executions have been issued or are now in force against Seller. No petition in bankruptcy or receivership has ever been filed by or against Seller.
H. Total Sales for the six-month period ending June 30, 2003 are reported to be $4,236,459. Total Assets reported as of June 30, 2003 are $1,461,234. Total Liabilities reported as of June 30, 2003 are $1,455,736. June 30, 2003 Income Statement and Balance Sheet are attached as Schedule A.
I. The net proceeds from the allotment and sale of the Special Common Shares will be used as business development capital for the Seller to build revenues to $20,000,000 annually and EBITDA to the 5% - 7% range during the next three years. However, in no event shall the net proceeds be used by the Seller for the payment (or loaned to any such person for the payment) of any judgment, or other liability, incurred by any executive officer, officer, director or employee of the Seller, except for any liability owed to such person for services rendered, or if any judgment or other liability is incurred by such person originating from consummating services rendered to the transactions contemplated Seller, or the Seller has indemnified such person from liability. Three-year Revenue and EBITDA projections are attached as Schedule B.
J. Seller has taken all corporate action requir▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ution and delivery of this Agreement and the performance of its obligations hereunder, including the issuance and allotment of the Special Common Shares, and this Agreement has been duly executed and delivered by the Seller and constitutes a valid and legally binding obligation of the Seller. When issued to and the first installment is paid for by the Purchaser in accordance with the terms of this Agreement, the Special Common Stock will be duly and validly issued, fully paid and nonassessable, and the issuance of the Special Common Stock will not be subject to any preemptive or similar rights that have not been waived.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary K. The authorized capital stock of the CompanySeller consists of 5,000 shares of Common Stock, par value $.001 per share. The Seller will create, before closing, 1,000 shares of Special Common Stock of the Seller. 1,000 shares of Common Stock and no shares of Special Common Shares have been issued and are outstanding as of the date hereof. All outstanding shares of Common Stock are and will be duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of the Seller or any agreement to which the Seller is a former executive officer and/or director party or by which it is bound and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid dividends with respect to any shares of Common Stock.
L. Seller shall elect one person from Purchaser to its Board of Directors. Initially Purchaser shall be represented by Frank Clark or Bernard Shinder.
M. Upon the signin▇ ▇▇ ▇▇▇ ▇▇reem▇▇▇, ▇▇▇ ▇▇▇▇▇▇'s two existing Shareholders shall enter into Executive Management Agreements at their current significant stockholder compensation levels.
N. The Individual Shareholders, who are signatories to this Agreement undertake and agree that they will not exercise their powers, whether as directors, officers or shareholders of the Company (to vote their shares so that:
a. Any rights or as an entity controlled by a former executive officer and/or director and current significant stockholder privileges of the Company)Special Common shares shall be changed, so as to altered or amended, and
b. Any further shares of any class shall be able to evaluate allotted or issued without the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all express consent of the Company's filings with the Securities Exchange Commission Buyer first had and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionobtained.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Bio One Corp), Stock Purchase Agreement (Bio One Corp)
Representations and Warranties by Seller. The Seller represents and warrants as of the following to each Purchaser in order to induce Effective Date and during the Purchasers to purchase the SharesTerm of this Agreement that:
(a) Seller has It is a corporation duly organized, validly existing and in good standing under the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. laws of its incorporating jurisdiction.
(b) The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or and the consummation by Seller of the transactions contemplated thereby have been duly authorized by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a validall necessary board, binding and enforceable agreement shareholder or other company action on behalf of and against the Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will is not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise subject to any right of contingent paymentcharter, terminationbylaw, cancellationlien or encumbrance, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement instrument, order or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning body which would prevent the consummation of the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement by Seller does not and will not violate any material statute, ordinance or governmental rule or regulation applicable to Seller, or result in a breach or constitute a default under any indenture or agreement to which it is a Party or by which it or its property may be bound. This Agreement has been duly executed and delivered by Seller, and this Agreement does, and such representation documents and instruments executed as the result thereof shall, constitute legal, valid and binding obligations of Seller enforceable in accordance with their terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies of creditors, as well as to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(c) No further consent, approval, permit, license or authorization of any governmental body is required in connection with the execution, delivery and performance of this Agreement by Seller.
(d) Neither Seller nor any Affiliate of Seller has included an examination of all taxemployed any investment banker, financial and legal aspects of broker or finder in connection with the transactions contemplated by this Agreement nor has it taken any action which would give rise to a valid claim against Buyer for a brokerage commission, finder’s fee or other like payment.
(e) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or, to the knowledge of Seller, threatened against or affecting Seller contesting or affecting as to Seller the execution, delivery, validity, performance or enforceability of this Agreement.
(f) To the best of Seller’s knowledge, no event has occurred and is continuing which would constitute, or upon the passage of time or the giving of notice or both could constitute, an Event of Default as to Seller under this Agreement.
Appears in 2 contracts
Sources: Gas Purchase and Sale Agreement, Gas Purchase and Sale Agreement (Intrepid Technology & Resources, Inc.)
Representations and Warranties by Seller. The 15.1 Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the SharesBuyer that:
(a) 15.1.1 Seller has the full power and authority to execute execute, deliver and deliver perform this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of carry out the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize hereby;
15.1.2 the execution and delivery of this Agreement by Seller or and the consummation carrying out by Seller of the transactions contemplated hereby have been duly authorized by all requisite corporate action, and this Agreement. This Agreement has been properly and validly duly executed and delivered by Seller and is a validconstitutes the legal, valid and binding obligation of Seller, enforceable against it in accordance with the terms hereof, subject to limitations imposed by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and enforceable agreement general principles of and against Seller.equity;
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller 15.1.3 to the Purchasers as contemplated hereinbest of Seller's knowledge, free no authorization, consent, approval or order, or notice to or registration, qualification, declaration or filing with, any governmental authority, is required for the execution, delivery and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other performance by such party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement or the carrying out by such party of the transactions contemplated hereby;
15.1.4 to the best of Seller's knowledge, none of the execution, delivery and performance by Seller of this Agreement, the compliance with the terms and provisions hereof, and the performance and compliance carrying out of the transactions contemplated hereby, materially conflicts or will conflict with its terms by Seller will not (i) conflict with, or result in a material breach or violation of any of the breach ofterms, conditions, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event provisions of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rulegovernmental rule or regulation or organizational document, regulationas amended, policyor bylaws, ruling or other interpretationas amended, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry Seller or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, applicable order, writ, injunction, judgment or decree or other similar command or directive of any court or federalgovernmental authority against Seller or by which it or any of its properties is bound, stateor any loan agreement, local indenture, mortgage, bond, note, resolution, contract or foreign other agreement or instrument to which such Seller is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or will result in the imposition of any third party lien upon any of its properties; and
15.1.5 there are no legal proceedings, arbitrations, administrative actions or other proceedings by or before any governmental or quasi-governmental authorityregulatory authority or agency, agency now pending or, to the knowledge of Seller, threatened against Seller party or instrumentality any of its subsidiaries that restricts Seller from consummating the transactions contemplated by if adversely determined, could reasonably be expected to have a material adverse effect on Seller's ability to perform its obligations under this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Development and Purchasing Agreement (Comdial Corp)
Representations and Warranties by Seller. The Seller represents and warrants to Buyers as of the following to each Purchaser in order to induce date hereof and as of the Purchasers to purchase the SharesClosing Date as follows:
(a) Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and has the requisite power and authority to execute and deliver enter into this Agreement and any and all other agreements, instruments, certificates and documents that are expressly required to be executed and/or delivered by the Parties hereby (the “Transaction Documents”), and to consummate the transactions contemplated by the Transaction Documents. The execution, delivery and performance by Seller of each Transaction Document to be consummated which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary company action on the part of Seller. The Each Transaction Document to which Seller is a party is, or upon its execution and delivery will be, a valid and binding obligation of Seller, enforceable against it in accordance with the terms thereof except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles (the “Bankruptcy and Equity Exceptions”).
(b) Seller is the sole beneficial and record holder of the Interests, and holds title to the Interests free and clear of any lien (statutory or otherwise), mortgage, pledge, charge, security interest, hypothecation, community property interest, equitable interest, servitude, option, right (including rights of first refusal), restriction (including restrictions on voting, transfer or other attribute of ownership), lease, license, other rights of occupancy, adverse claim, reversion, reverter, preferential arrangement or any other encumbrance in respect of the Interests (each, a “Lien”).
(c) Neither the execution, delivery or performance by Seller of this Agreement and or any Transaction Document to which Seller is a party, nor the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerhereby or thereby, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement nor compliance by Seller or the consummation by Seller with any of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal provisions hereof or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller thereof will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) violate any law, rulestatute, regulation, policy, ruling rule or other interpretation, guideline, circular, judgment, order, decree regulation or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunctioninjunction or decree (“Law”), decree in each case applicable to Seller or other similar command Seller’s assets or directive of properties, or give any court or federal, state, local or foreign governmental or quasi-governmental regulatory agency, commission, bureau, authority, agency court or instrumentality that restricts arbitration tribunal (“Authority”) or other Person (as defined below) the right to challenge any of the transaction contemplated hereby, (ii) with or without the passage of time or the giving of notice or both, result in the breach of, or constitute a default or require any consent under, or result in the creation of any Lien upon the Interests pursuant to any material contract to which such Seller from consummating is a party or by which such Seller or the transactions contemplated by this Agreement.
Interests may be bound or affected, in each case, or (eiii) Seller has sufficient knowledge or violate any provision of the certificate of formation, bylaws and experience with the Company includingoperating agreement, without limitation(or other comparable charter documents), as a co-founder applicable, as each may be amended or restated from time to time (or as an entity controlled by a co-founderthe “Organizational Documents”) of TradeStation SecuritiesSeller or any standing resolution adopted by the managers or members of Seller. “Person” means any individual, Inc.corporation, a Florida corporation that is currently the primary operating subsidiary of the Companylimited liability company, and as a former executive officer and/or director and current significant stockholder of the Company (partnership, joint venture, association, trust, unincorporated organization, governmental entity or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementany other entity.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Gramercy Property Trust Inc.)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended March 31, 2002 2002, June 30, 2002, and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1September 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 and July 16, 2002 earnings releases. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove for the 2002 fourth quarter are currently expected to be materially different more favorable than those previously forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares:
(a) Seller represents, warrants, and covenants to Purchaser that:
(i) Seller (1) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (2) has the full power and authority to convey the Property and to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution all documents contemplated hereby, (3) has taken all actions and delivery by Seller of this Agreement obtained all consents and approvals required for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(eii) This Agreement constitutes a valid and binding obligation of Seller has sufficient knowledge and experience is enforceable against Seller in accordance with the Company includingits terms except as such enforcement may be limited by applicable bankruptcy, without limitationinsolvency, as a co-founder (reorganization, moratorium or as an entity controlled by a co-founder) other laws of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary general application relating to or affecting enforcement of the Companycreditors' rights generally, and as a former executive officer and/or director the application of equitable principles in any action, legal or equitable. The execution of this Agreement, the delivery of all required documents, the Seller's performance of this Agreement and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated hereby have been duly authorized by this Agreementall requisite action on the part of the Seller.
(fiii) Neither the execution and delivery of, nor the performance under, this Agreement or any other document executed and delivered by the Seller (and/or both contemporaneously herewith or at the Closing) in connection with this transaction is precluded by, will conflict with, result in a breach of or violate, any provision of (1) any existing Federal, state, local or other governmental or quasi-governmental law, statute, ordinance, restriction, rule or regulation, or (2) any judgment, order decree, writ or injunction of any court or governmental department, commission, board, bureau, agency or instrumentality applicable to Seller.
(iv) Schedule 5.1(iv) sets forth all of the leases (collectively "Leases") entered into with respect to the Property, together with all security deposits held by or on behalf of Seller pursuant to any of the Leases. All Leases are in full force and effect in accordance with their respective terms. To the Seller's officersknowledge, directorsno tenant under a Lease has asserted any claim or default or offset against the Seller with respect thereto.
(v) There are no brokerage or leasing commissions which are due and unpaid with respect to any of the Leases.
(vi) All service, executivesmanagement or maintenance contracts (collectively "Contracts") relating to or affecting the Property are set forth in Schedule 5.1(vi) annexed hereto and made a part hereof and true and correct copies of all Contracts, partners and/or principals who including all agreements, amendments, and other documents relating thereto, have been made available to the Purchaser for inspection. All Contracts are acting on in full force and effect in accordance with their respective terms. To the Seller's behalfknowledge, no party to any of the Contracts has asserted any claim or default or offset against the Seller with respect thereto.
(vii) is fully familiar with all facts and circumstances attendant There are no actions, proceedings or other litigation pending or, to Seller's decision knowledge, threatened, with respect to sell the Shares to be sold by Property, the use or operation thereof or the Seller, has reviewed all of as owner thereof, nor are there any outstanding or unpaid judgments against the Company's filings with Seller or affecting the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionProperty.
(gviii) Seller has (is acquiring the Shares for investment purposes only and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as not with a view to be capable of evaluating, alone the resale or together, the merits and risks of selling his or its Sharesdistribution thereof.
(hix) Seller has reviewedTo Seller's knowledge, among other things, there are no pending or threatened condemnation proceedings affecting the Company's Annual Report of Form 10-K Property.
(and its audited financial statements included thereinb) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 Except as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. HoweverSection 5.1(a), Seller specifically understands and agrees that has not made any warranty or representation, express or implied, written or oral, concerning the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future eventsProperty or any uses to which the Property may or may not be put including, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in factbut not limited to, the actual operating results of the Company may prove to be materially different than those forecasted.following:
(i) Seller has been represented by such businessthe condition of title to the Property;
(ii) the nature, legal physical condition or other aspect of the Property;
(iii) the income or expenses generated, paid or incurred in connection with the Property;
(iv) the accuracy of any statements, calculations or conditions stated or set forth in Seller's books and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult records concerning the consummation Property;
(v) the suitability of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects Property for any intended use or development;
(vi) the dimensions of the transactions contemplated by this AgreementProperty or the accuracy of any square footage, sketches or abstracts, revenue or expense projections related to the Property;
(vii) the ability of Purchaser to obtain any and all necessary governmental approvals or permits for Purchaser's intended use and development of the Property; or
(viii) the existence of Hazardous Materials (as defined in Section 5.3(b)) in, on, about, under, or affecting the Property.
Appears in 1 contract
Representations and Warranties by Seller. The Seller hereby represents and warrants to and for the following to each benefit of the Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) Seller has is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder, and to consummate the transactions to Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be consummated enforceable in accordance with its terms, except as enforceability may be limited by Seller. applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the transactions contemplated by this Agreement have been duly authorized by SellerTransaction, and no organizational or other action on will not constitute (with the part giving of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller notice or the consummation lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner of the transactions contemplated by this Agreement. This Agreement Transferred Interest and has been properly as of the Closing Date, title to such Transferred Interest, free and validly executed clear of any and delivered by Seller and is a validall encumbrances, binding and enforceable agreement of and against Seller.liens, claims;
(be) Seller has full rightThe Company will be, power and authority to transfer at the Shares to be sold by Seller to time of Closing, the Purchasers as contemplated hereinfee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, charges, and claims, pledgesexcept for the Permitted Exceptions;
(f) There is no litigation, encumbrances action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and restrictions hold the Purchaser harmless against and rights from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and interests costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any other party whatsoever and possible future improvements that might create an assessment against any part of any nature (other than restrictions imposed by federal or state securities laws)the Real Property.
(ci) The execution There is no pending, and delivery Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the ▇▇▇▇ ▇▇▇▇▇▇ has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. ▇▇▇▇▇ River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the performance Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and compliance neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with its terms respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller will is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) conflict withNo oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or result any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the breach ofcontracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or trigger or accelerate any right or obligation (including prepayment penalties)an event, or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with except for the passage of time, the time or giving of notice, or both, would become constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or give rise entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to any right Intercept and Obstruct Terrorism Act of contingent payment2001, terminationH.R. 3162, cancellationPublic Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, acceleration or noneffective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-renewalTerrorism Laws”), or including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) result in shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the creation of any lienssame after Closing as they are received, chargesto the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, rightsobligations, claims, interests, options claims or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder adverse financial conditions of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of not previously disclosed to Purchaser which would cause the Company), so as information previously provided to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove Purchaser to be materially different than those forecastedmisleading.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Consolidated Tomoka Land Co)
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Connecticut. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that the transactions to be consummated Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") Seller has full rightand for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, power and governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
E. Seller acknowledges that the Assets being transferred per Schedule "A" are owned free and clear of all lienslines and encumbrances, security interestsare not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the Purchase Price paid by Purchaser for Sellers' Assets is fair and adequate consideration.
F. Seller has conducted its business in compliance with all applicable federal, chargesstate and local laws, claimsregulations and ordinances.
G. Seller has not received any notice that it is infringing upon the research, pledgesdevelopment, encumbrances processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery H. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this Agreement and the performance and compliance with its terms by Seller will not transaction without penalty. No employee, director, officer or stockholder (ior any current or former family member thereof) conflict withof Seller, either individually or result in the breach ofany other capacity, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute has a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations claim of any kind upon against the Shares to be sold by Seller, whether tangible and Seller has no obligation with respect to such person or intangibleentity, under (A) except the Seller's organizational right to current salary or constituent instrumentswages, if any (includingaccrued vacation pay, without limitation, articles and reimbursable expenses arising in the ordinary course of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and business. Seller does not know of contribute to or sponsor any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree employee welfare or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companybenefit plans, and as is not subject to any collective bargaining agreement, for employees. I. Seller is a former executive officer and/or director sophisticated investor and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings uncertainties involved with the Securities Exchange Commission and its recent press releases, receipt of restricted common stock. Seller has had an opportunity to ask questions of, discuss the operations of both Xstream and receive answers from, representatives of the Company Purchaser's business with management and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and provided with any requested information. Seller has also reviewed Xstream's filings on the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedSEC EDGAR database located at www.sec.g▇▇.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Xstream Beverage Group Inc)
Representations and Warranties by Seller. The Seller warrants and represents to Buyer that as of the Effective Date and warrants the date of Closing, each of the following to each Purchaser in order to induce the Purchasers to purchase the Sharesrepresentations shall be true and correct:
(ai) Seller has is a duly organized and validly existing limited liability company under the laws of the State of Delaware and on the date of Closing will have full power and authority to execute and deliver this Agreement and sell the Property to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against SellerBuyer.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(cii) The execution and delivery of this Agreement has been duly authorized by all necessary action of Seller, and the performance this Agreement will, when executed and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold delivered by Seller, whether tangible or intangibleconstitute the valid and binding obligation of Seller and will be enforceable in accordance with its terms, under (A) the Seller's organizational or constituent instrumentsexcept as such enforceability may be limited by bankruptcy, if any (includinginsolvency, without limitationreorganization, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, moratorium or other agreement or instrument applicable laws and by general principles of any kind equity (whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, applied in a proceeding at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreementequity).
(eiii) Seller has sufficient knowledge The execution, delivery and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) performance of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companythis Agreement does not, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated hereby will not, violate any provision of the Articles of Organization or operating agreement of Seller, or any provision of any agreement, instrument, order, judgment or decree to which either Seller is a party or by which it or any of its assets is bound.
(iv) Seller has not used or operated the Property in any manner for the storage, use, treatment, manufacture or disposal of any hazardous or toxic materials or substances, petroleum products or hydrocarbons except in a manner that is in compliance with applicable law and in quantities reasonably customary and necessary for the Intended Use.
(v) Except as may be disclosed on the Title Commitment, including recorded monetary liens affecting title as of the Effective Date, no lien, other than a lien for real estate taxes not yet due and payable, encumbers or affects title to the Property or any portion of the Property.
(vi) Seller has received no written notice of any claim, action, litigation, arbitration or other proceeding pending or, to the best of Seller’s knowledge (without implying any duty of investigation or inquiry), threatened against Seller which relates to the Property or any portion of the Property, or the transactions contemplated hereby or which could result in the imposition of a lien against the Property or any portion of the Property or an action against Buyer. If Seller receives notice of any such claim, litigation or proceeding prior to Closing the transaction contemplated under this Agreement, and such representation has included an examination of all tax, financial and legal aspects Seller shall promptly notify Buyer of the transactions contemplated by this Agreementclaim, litigation or proceeding in writing.
(vii) Seller has received no written notice of any existing, pending, or, to the best of Seller’s knowledge, threatened condemnation, incorporation, annexation or moratorium proceedings affecting the Property or any portion of the Property.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Lazydays Holdings, Inc.)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants to Purchaser as of the following to each Purchaser in order to induce the Purchasers to purchase the Sharesdate of this Agreement as follows:
(a) Seller is an Illinois limited partnership, duly formed, validly existing and in good standing under the Laws of the jurisdiction in which it was formed, and has the power full power, authority and authority legal right to execute and deliver this Agreement and to consummate engage in the transactions to be consummated by Seller. The execution contemplated by, and delivery by Seller perform and observe the terms and conditions of this Agreement.
(b) This Agreement and the consummation by Seller of the transactions contemplated by this Agreement hereby have been duly authorized by Seller, and no organizational or other all necessary action on the part of Seller or any other person or entity is necessary to authorize and, upon the execution and delivery of assumption that this Agreement constitutes a legal, valid and binding obligation of Purchaser, this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by Seller or bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the consummation enforcement of creditors' rights generally and by Seller general principles of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)equity.
(c) The execution and delivery of this Agreement and the performance and compliance with its terms consummation of the transactions contemplated hereby by Seller do not and will not (i) violate or conflict with, with the Seller's organizational documents or (ii) violate or conflict with any Laws or any governmental regulation or permit applicable to Seller or (iii) result in the a breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default under, any provision of any contract or an event of other instrument to which Seller is a party or by which it is bound, which breach or default would prevent or an occurrence, circumstance, act or failure to act that, materially interfere with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, Seller's performance hereunder or (iiiv) result in the creation or imposition of any lienslien, charges, rights, claims, interests, options charge or encumbrance pursuant to the terms of any such contract or other encumbrancesinstrument which lien, restrictions charge or limitations encumbrance would prevent or materially interfere with Seller's performance hereunder.
(d) Except as specified on Schedule 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, Seller has not received written notice of any kind upon actions, suits or proceedings, either pending or threatened, against Seller in connection with the Shares to be sold by SellerLoan, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles any actions, suits or proceedings which might question the validity of incorporation, articles this Agreement or the consummation of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreementhereby.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary As of the Companydate specified on Exhibit A (the "Pricing Date"), the (i) unpaid principal balance of the Loan, (ii) the amount of interest accrued on the Loan which remains unpaid, (iii) the rate or rates at which interest on the unpaid principal amount of the Loan accrues or is payable, and (iv) the maturity date with respect to the Loan are as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementspecified on Exhibit A hereto.
(f) Seller (and/or To the best of Seller's officersknowledge, directors(i) the Loan Documents specified on Schedule 7(f) hereto constitute all material Loan Documents, executives(ii) such Loan Documents have not been modified or amended, partners and/or principals who are acting except as described on Seller's behalfSchedule 7(f) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions ofhereto, and receive answers from, representatives (iii) the copies of the Company such Loan Documents which are attached to Schedule 7(f) or which have previously been delivered to Purchaser are true and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and correct in all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionmaterial respects.
(g) Except as specified on Schedule 7(g) or 7(h) or as previously disclosed to Purchaser in writing, to the best of Seller's knowledge, without investigation or inquiry with respect thereto, Seller has (and Seller's officersreceived no written notice that the Loan is subject to any right of rescission, directorsset-off, executives and/or principals and Seller's representativesrecoupment, if anyabatement, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as diminution, counterclaim or valid defense by the Borrower or any Guarantor which would affect the ability of the holder thereof to realize the practical benefits of the security intended to be capable provided by the Loan Documents for the Loan, as such realization may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of evaluatingcreditors' rights generally and by general principles of equity, alone regardless of whether such realization is considered in a proceeding at law or together, the merits and risks of selling his or its Sharesin equity.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 Except as set forth on Schedule 7(h) or as previously disclosed to Purchaser in writing, to the Companybest of Seller's Current Report on Form 8-K filed on January 17knowledge, 2002. Howeverwithout investigation or inquiry with respect thereto, (i) Seller specifically understands has not commenced or threatened to commence any actions, suits or proceedings in connection with the Loan Documents, and agrees that (ii) there are no valid, effective and enforceable orders, injunctions or decrees of any federal, state, municipal or local court or arbitral body with respect to the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that Loan or the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedLoan Documents.
(i) Seller (i) is the sole owner and holder of the Loan, free of any encumbrances, liens, pledges, charges or security interests of any nature, (ii) has been represented by such businessnot granted any other option to purchase or other rights in and to the Loan, legal (iii) has not pledged, collaterally assigned or otherwise hypothecated any, interest therein or agreed to do so and tax counsel (iv) has obtained (to the extent required and advisors not waived or the requirement therefor otherwise avoided or averted) all consents of Borrower, any Guarantor or other third party pursuant to a Loan Documents which is necessary for the execution and othersdelivery of this Agreement and the sale of the Loan provided for herein.
(j) Except as specified on Schedule 7(j) hereto or as previously disclosed to Purchaser in writing, each to the best of whom Seller's knowledge, without investigation or inquiry with respect thereto, neither Borrower nor any Guarantor has been personally selected by filed or is the subject of any proceeding under any state or federal bankruptcy or insolvency Law.
(k) Except as specified on Schedule 7(k) hereto or as previously disclosed to Purchaser, to the best of Seller's knowledge, as without investigation or inquiry with respect thereto, Seller has found necessary not received any written notice of any pending or threatened condemnation or similar proceeding affecting the Property.
(l) Except as specified on Schedule 7(l) hereto or as previously disclosed to consult concerning Purchaser in writing, no environmental reports or studies with respect to the consummation Property (collectively, "Reports") have been performed by or on behalf of Seller and, to the best of Seller's knowledge, without investigation or inquiry, Seller has not received notice that any of such Reports are inaccurate in any material respect.
(m) To the best of Seller's knowledge, (i) the letters dated August 26, 1996, December 6, 1996 and December 11, 1996 from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ on behalf of Seller to the Borrower, represent the only written prepayment correspondence from Seller to Borrower with respect to the Loan; (ii) there have been no oral prepayment communications between Seller and Borrower which differed in any material respect from the letters referred to above; and (iii) with the exception of the transactions contemplated by letters dated November 27, 1996 and December 10, 1996, Seller has received no written prepayment correspondence from Borrower. All warranties and representations of Seller in this Agreement, Section 7 are true and such representation has included an examination of correct in all tax, financial and legal aspects material respects as of the transactions contemplated by date hereof, and, with respect to clauses (a) through (c) above, shall continue to be true and correct in all material respects as of the Closing Date. Subject to the provisions of Section 17 hereof, the representations and warranties of Seller contained in this AgreementSection 7 shall survive the Closing for a period of ninety (90) days; provided, however, that any claim hereunder based upon such representations and warranties must be made within such ninety (90) day period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Balcor Pension Investors V)
Representations and Warranties by Seller. The 5.1. Seller represents warrants and warrants the following represent to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the placeStateNevada. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the transactions to be consummated Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. Seller will provide Purchaser prior to closing copies of director and shareholder consents to enter into this Agreement Agreement. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
(b) Seller has full right1. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, power including without limitation all amendments, modifications, and supplements, whether written or oral and for performing Sellers' obligations under the Purchase Documents have been obtained. No consent of any court, governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
D. The Assets being transferred per Schedule A are owned free and clear of all liensliens and encumbrances, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests are not encumbered by any lien or the subject matter of any other party whatsoever known or anticipated litigation. Seller has satisfied all conditions required of Seller in connection with the acquisition of the assets from the original owner and Seller has recorded title to the assets with the United State Patent and Trademark Office. Copies of all registrations, whether in the placecountry-regionUnited States or with any nature (other than restrictions imposed foreign jurisdiction are attached hereto. Seller further acknowledges and agrees that the Purchase Price paid by federal or state securities laws)Purchaser for Seller’s Assets is fair and adequate consideration.
(c) The execution and delivery of this Agreement and the performance and E. Seller has conducted its business in compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or nonall applicable placecountry-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or regionU.S. federal, state, and local laws, regulations and ordinances and any laws or regulations of any foreign governmental jurisdiction.
F. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
G. Seller is not a party to any written or quasi-governmental authorityoral employment, agency or instrumentality commission agreement with any of its employees that restricts cannot be terminated upon the closing date of their transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, the Business or the Assets and Seller from consummating the transactions contemplated by this Agreementhas no obligation with respect to such person or entity. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees.
(e) 2. The Seller has sufficient knowledge completed its due diligence on the Purchaser and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating uncertainties involved with the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all receipt of the Company's filings with the Securities Exchange Commission and its recent press releases, Purchaser’s Common Stock. Seller has had an opportunity to ask questions ofdiscuss the operations of Purchaser’s s business, financial condition and receive answers from, representatives affairs with management and has been provided with any requested information. The Seller understands that there is a substantial risk of loss with respect to their investment in the Common Stock of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionPurchaser.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Homeland Security Network, Inc.)
Representations and Warranties by Seller. The Seller hereby represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the SharesPurchaser, as follows:
(a) 2.1 Seller has good and marketable title to the Stock, free and clear of all claims, liens, and encumbrances, other than those imposed by this Agreement or securities laws.
2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions to be consummated by Sellercontemplated hereby. The execution and delivery by Seller of this Agreement and has taken all action necessary for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerauthorization, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly duly and validly executed and delivered by Seller and is a validconstitutes the legal and binding obligation of Seller, binding enforceable against Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and enforceable agreement other laws of general application affecting enforcement of creditors’ rights generally, and against Seller(ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) 2.3 The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations pursuant to this Agreement, and the performance and compliance with its terms consummation of the transactions contemplated hereby will not result in a breach by Seller will not (i) conflict with, or result in the breach of, violate the terms or trigger or accelerate any right or obligation (including prepayment penalties)conditions of, or constitute a default by Seller under, any agreement, instrument, decree, law, judgment or an event order to which Seller is a party, to which the properties of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of noticeSeller may be subject, or bothby which Seller may be bound, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interestsliens or encumbrances on the Stock, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality than those that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed created by Purchaser or answered to Seller's satisfactionrestrictions imposed by securities laws.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "“Lawsuit"”) pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's ’s decision to sell the Shares to be sold by Seller, has reviewed all of the Company's ’s filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's ’s decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's ’s satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, “Sale Discussions”), or (ii) the Company has any current plans or intentions to announce another stock buy back plan (“Second Buy Back Plan”), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's ’s Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed June 30, 2002, as well as the business outlook for the Company for the fiscal year beginning January 1Company’s August 2, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17Proxy Statement and October 15, 20022002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) former officer and director of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants to the following to Purchaser on the date of the Original Agreement and on each Purchaser in order to induce the Purchasers to purchase the Sharesday on which there is a Purchase:
(a1) The Seller has is a corporation duly incorporated and validly existing under the power Laws of its governing jurisdiction, and authority is duly qualified and licensed to execute carry on its business in all jurisdictions in which the nature of any business conducted by it or the character of any property and deliver this Agreement assets owned or leased by it requires such qualification, except to the extent that failure to have any such qualification or license would not have Material Adverse Effect.
(2) The execution, delivery and to consummate performance by the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of Related Documents to which it is a party (a) are within the transactions contemplated by this Agreement Seller’s corporate powers, (b) have been duly authorized by all necessary corporate action, and (c) do not contravene any of the following: (i) the Seller’s constating documents or by-laws; (ii) in any material respect, any Law applicable to the Seller including any regulation, order, tariff or ruling of the CRTC; (iii) any material contractual restriction binding on or affecting the Seller or its property; or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting, in any material respect, the Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller its property or the consummation by Seller Receivables Pool; and (d) do not result in or require the creation of any Adverse Claim upon or with respect to the transactions Receivables Pool (other than the Seller’s Retained Interest hereunder). No transaction contemplated by this AgreementAgreement requires compliance with any bulk sales act or similar Law. This Agreement and each Related Document to which the Seller is a party has been properly and validly duly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against the Seller.
(b3) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and or any Related Document to which the performance and compliance with its terms by Seller will is a party other than those which have been obtained or completed except where such lack of authorization, approval, action, notice or filing could not materially adversely affect (i) conflict with, the value or result in collectibility of the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewalReceivables Pool, or (ii) result the Purchaser’s interests hereunder. For greater certainty, any authorization, approval, action, notice or filing required from or with the CRTC or the Canada Revenue Agency is deemed to be material.
(4) This Agreement and each Related Document to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms subject to (a) applicable bankruptcy, reorganization, winding-up, insolvency, moratorium and other Laws of general application limiting the enforcement of creditors rights, (b) the fact that the granting of equitable remedies such as specific performance and injunction is within the discretion of a court of competent jurisdiction, and (c) general principles of equity.
(5) There is no pending or, to the Seller’s knowledge, threatened, action or proceeding affecting the Seller or any of the Seller’s assets before any Governmental Authority which, if determined adversely, would have a Material Adverse Effect.
(6) Immediately prior to each Purchase, the Seller is the legal and beneficial owner of the Pool Receivables and Related Rights free and clear of any Adverse Claim. Upon such Purchase, the Seller shall sell, transfer, assign and convey to the Purchaser a valid and perfected undivided ownership interest to the extent of the Purchaser’s Ownership Interest in each Pool Receivable and Related Rights.
(7) No effective financing statement or other instrument similar in effect perfecting an Adverse Claim in any Pool Receivable or Related Rights is on file in any recording office registered or filed under the PPSA of any province or territory of Canada against the Seller, except in respect of which a waiver, release or acknowledgement in writing and in form and substance acceptable to the Purchaser has been obtained.
(8) Each Servicer Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or any such Affiliate) and all other information, historical performance data, exhibits, financial statements, documents, materials relating to collection practices and procedures, books, records or reports furnished at any time by or on behalf of the Seller to the Agent or the Purchaser in connection with this Agreement are accurate in all material respects as of their respective dates or as of the date so furnished and do not or shall not omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(9) The chief executive office of the Seller is located in a Province of Canada where all actions necessary to perfect the Purchaser’s Ownership Interest in the creation Receivables Pool has been taken and completed and the offices where the Seller keeps its Records concerning the Pool Receivables and Related Security are located at the address or addresses set forth in Schedule C.
(10) Neither of the Seller nor any liensOriginator is in default and, chargesupon completion of each Purchase hereunder, rightsshall not be in default, claims, interests, options under any agreement or other encumbrancesdocument or instruments to which it is a party or by which it or any of its properties or assets is bound or affected where such default would have a Material Adverse Effect, restrictions and, for greater certainty, this includes any indenture or limitations instrument evidencing or under which the Seller or an Originator has at any time outstanding indebtedness for borrowed money in excess of any kind upon 5.0% of the Shares aggregate principal amount of all outstanding indebtedness for borrowed money of the Seller on a consolidated basis.
(11) The Seller is not a non-resident of Canada within the meaning of the Income Tax Act (Canada).
(12) No Insolvency Event has occurred with respect to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational . The Seller has entered into this Agreement and the Related Documents to which it is a party for the purpose of selling, transferring, assigning and conveying all of its right, title and interest in, to and under the Purchaser’s Ownership Interest to the Purchaser and receiving from the Purchaser the consideration therefor specified in this Agreement, and not for the purpose of defeating, hindering, delaying, defrauding or constituent instruments, if oppressing the rights and claims of creditors or others against the Seller or for any (including, without limitation, articles other purpose relating in any way to the claims of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of creditors or others against the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d13) There is Since the date of the last audited financial statements of the Seller delivered pursuant to Section , there has been no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry change in the consolidated financial position or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (the consolidated results of the operations of the Seller that would have a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this AgreementMaterial Adverse Effect.
(e14) All Records reasonably necessary to originate, identify, administer and collect the Pool Receivables and Related Security in accordance with the terms hereof and the Credit and Collection Policy are owned by the Seller or if not owned by the Seller, the Seller has sufficient knowledge all necessary rights of access to such Records to so originate, identify, administer and experience with collect the Company including, without limitation, Pool Receivables and Related Security as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementherein.
(f15) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all Each of the Company's filings with Pool Receivables and the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionReceivables Pool is identifiable.
(g16) Seller has No Event of Termination (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 than as set forth out in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events Section ) has occurred and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedcontinuing.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Subject to the Schedules and other agreements in connection with the transactions contemplated herein or as reflected in the financial information provided by Seller to Purchaser, Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas of December 31, 2000 (except as otherwise expressly provided), as set forth below:
(a) 5.1. Organization, Existence and Authority of Seller and IPM. Seller and IPM each is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. Seller has the all corporate power and authority to execute execute, deliver and deliver perform this Agreement and the Transaction Documents to be executed and delivered by Seller pursuant hereto and to consummate the transactions contemplated hereby and thereby, subject to be consummated the approval and adoption of those transactions by Sellerthe Special Committee and the shareholders of Venturian. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or does not, and the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by hereby will not, violate any provisions of Seller's or IPM's Articles of Incorporation or By-Laws or, to Seller's knowledge, of any law or regulation applicable to Seller and or IPM or of any agreement, mortgage, license, lease, arrangement, instrument, order, arbitration award, judgment or decree to which Seller or IPM is a valid, binding and enforceable agreement of and against Seller.
(b) party or by which Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, IPM is bound or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any lienslien, chargescharge, rights, claims, interests, options security interest or other encumbrances, restrictions or limitations of any kind upon encumbrance on the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder Assets (or the assets of IPM) other than as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of except that many or all tax, financial and legal aspects of the transactions contemplated contracts, agreements and Performance Obligations to be assigned by Seller to Purchaser and assumed by Purchaser pursuant to this AgreementAgreement are not so assignable and/or assumable without the consent of the other party or parties thereto.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants makes only the following representations and warranties to each Purchaser in order to induce the Purchasers to purchase the SharesBuyer:
(a) 3.2.1 Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California.
3.2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Sellerperform its obligations hereunder. The execution and delivery by Seller of this Agreement Agreement, and the consummation performance by Seller of the transactions contemplated by this Agreement its obligations hereunder, have been duly and validly authorized and approved by Seller, and no organizational or other all necessary action on the part of managers and the members of Seller.
3.2.3 This Agreement is binding upon, and enforceable against, Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally and by general principles of equity (whether in a proceeding at law or in equity).
3.2.4 Neither the execution or delivery of this Agreement by Seller nor the performance by Seller of its obligations under this Agreement will, conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, lease, license, franchise, permit, indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which Seller is a party or is bound or any judgment, order or decree, statute, law, ordinance, rule or regulation applicable to Seller or the property or assets of Seller (including, without limitation, the Property) or the articles of formation or operating agreement of Seller, or any applicable law or order, except for conflicts, breaches or defaults which would not have a material adverse effect on Seller.
3.2.5 No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other person governmental authority or entity instrumentality, domestic or foreign, is necessary required to authorize be obtained or made by or with respect to Seller in connection with the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, hereby.
3.2.6 Seller has good and such representation has included an examination marketable title to all of the Property free and clear of all tax, financial and legal aspects liens of the transactions contemplated by this Agreementany nature.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, "Sale Discussions"), or (ii) the Company has any current plans or intentions to announce another stock buy back plan ("Second Buy Back Plan"), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
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