Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby represents and warrants to each of the other Investors and to Parent that: (i) such Investor has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement); (ii) if such Investor is not an individual, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary; (iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares; (iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement; (v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement; (vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets; (vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; and (viii) this Agreement constitutes a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles. (b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that: (i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets; (ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; (iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles; (iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements); (v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests; (vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and (vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment. (c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 3 contracts
Sources: Interim Investors' Agreement (Gall Ulrich), Interim Investors' Agreement (JMCM Holdings LLC), Interim Investors' Agreement (London Adam)
Certain Representations and Warranties. (a) 3.5.1 Each Investor, severally and not jointly, Investor hereby represents and warrants to each of the other Lead Investors and to Parent that:
that (i) such Investor it has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any other potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (or any other similar transaction involving the Company, other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Joint Bidding Agreement, Permitted Syndication and the Noteholder Conversion Support Agreement);
; (ii) if such Investor is not an individuala corporate entity, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
; (iii) such Investor he/it is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
; (iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Proxy Statement or Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law 13E-3 will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
; (v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
; (vi) the execution, delivery and performance of this Agreement has have been duly authorized by all necessary actionaction and, does if the Investor is a corporate entity, do not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual)documents, and does not contravene or any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s its/his assets;
; (vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereinAgreement; and
(viii) this Agreement constitutes a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms; and (ix) if such Investor is a Sponsor, subject such Sponsor, or its applicable Affiliate(s) party to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment LettersLetter, the Warrant Exchange Agreementwill have sufficient funds, the Noteholder Conversion Agreementavailable lines of credit, the Rollover Agreementsunfunded capital commitments or other sources of immediately available funds to fulfill its “Equity Commitment” (as defined in each Investor’s Equity Commitment Letter). No Investor, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub any of its Subsidiaries or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty on behalf of such Investor or any of its Affiliates in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, 3.5 and no Investor nor Investor, any of its Affiliates, Parent, Merger Sub any of its Subsidiaries or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party3.5.1.
Appears in 3 contracts
Sources: Interim Investors' Agreement (General Atlantic, L.P.), Interim Investors' Agreement (Dragoneer Investment Group, LLC), Interim Investors' Agreement (De Sa Cavalcante Neto Ari)
Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby The Sublessee represents and warrants to each the Sublessor that, as of the other Investors and to Parent thatdate hereof:
(a) the Sublessee is (i) such Investor has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);
(ii) if such Investor is not an individual, it is a [corporation/limited liability company] duly [organized/formed], validly existing and in good standing under the Laws laws of the jurisdiction of its jurisdiction of organizationformation, (ii) has the [corporate/limited liability company] power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted, and (iii) is duly qualified to conduct businessqualified, and is in good standing, standing and authorized to do business in each other jurisdiction where in which the ownership character of its properties or the conduct nature of its business makes businesses requires such qualification necessaryor authorization;
(iiib) such Investor is the sole record Sublessee has the [corporate/limited liability company] power, and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has taken all necessary power and authority [corporate/limited liability company] action to authorize it, to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, rightits terms, and authority to execute consummate the transactions contemplated hereby; and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), executed and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated delivered by the Merger Agreement for the consummation of the transactions contemplated therein; and
(viii) this Agreement constitutes Sublessee and is a legal, valid and binding obligation of such Investor the Sublessee enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(iic) all consentsof the issued equity interests of the Sublessee are owned directly or indirectly by the Guarantor, approvalsfree and clear of all liens, authorizationsencumbrances, permits equities or claims;
(d) no consent, action by or in respect of, filings with and notifications toapproval or other authorization of, any Governmental Authority necessary for the due executionor registration, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to declaration or filing with, any Governmental Authority or other Person is required in connection with for the execution, valid execution and delivery or performance by the Sublessee of this Agreement by Parent and Merger Sub, subject to or for the filings, performance of any of the Sublessee’s obligations hereunder other than such consents, approvals and other actions contemplated by approvals, authorizations, registrations, declarations or filings as would not have in the Merger Agreement for the consummation of the transactions contemplated thereinaggregate a Material Adverse Effect;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(ive) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares Sublessee is not (i) in violation of Parent and will be free and clear from all Liens its certificate of [incorporation/ formation] or [by-laws/limited liability company agreement]; (other than restrictions under applicable federal and state securities Laws or as provided ii) in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance violation of any Requirement of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent Law with respect to it or (iii) in violation of any Contractual Obligation with respect to it, except in the voting or transfer case of equity interests of Parent or any other aspect of this clause (iii) as would not have in the affairs of Parentaggregate a Material Adverse Effect; and
(viif) Parent and Merger Sub are not aware the regular course of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax TreatmentSublessee’s business is renting vehicles in its daily domestic vehicle rental business.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 3 contracts
Sources: Master Motor Vehicle Operating Lease Agreement (Avis Budget Group, Inc.), Master Motor Vehicle Operating Lease Agreement (Avis Budget Group, Inc.), Master Motor Vehicle Operating Lease Agreement (Avis Budget Group, Inc.)
Certain Representations and Warranties. (a) Each InvestorBy executing and delivering an Assignment and Acceptance, severally the parties thereunder confirm to and not jointly, hereby represents agree with each other and warrants to each of the other Investors and to Parent thatparties hereto as follows:
(i) such Investor has not entered intoother than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty, express or implied, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) assumes no responsibility with respect to the subject matter of any statements, warranties or representations made in or in connection with this Agreement or the Merger Agreement (other than the agreements expressly contemplated by execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Merger Agreementother Credit Documents or any other instrument or document furnished pursuant hereto or the attachment, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement)perfection or priority of any security interest;
(ii) if such Investor is not an individualthe assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower and its affiliates, it is duly organizedrelated entities or Subsidiaries or any other person primarily or secondarily liable in respect of any of the Borrower Obligations, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct performance or observance by the Borrower or any other person primarily or secondarily liable in respect of its business makes such qualification necessaryany of the Borrower Obligations or any of their obligations under this Agreement or any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such Investor is assignee confirms that it has received a copy of this Agreement and the sole record and lawful owner other Credit Documents, together with copies of the Rollover Shares or securities underlying most recent financial statements provided by the Rollover SharesBorrower as required by the terms of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) none of such assignee will, independently and without reliance upon the assigning Lender, the Administrative Agent or any other Lender and based on such documents and information supplied by such Investor specifically for inclusion as it shall deem appropriate at the time, continue to make its own credit decisions in taking or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger not taking action under this Agreement;
(v) such assignee represents and warrants that it is an Eligible Assignee if required hereunder;
(vi) such Investor is not an individual, it has all necessary power assignee appoints and authority authorizes the Administrative Agent to execute, deliver take such action as agent on its behalf and perform its obligations to exercise such powers under this Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority are required to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance be performed by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, it as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereina Lender; and
(viii) this Agreement constitutes a legal, valid such assignee represents and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance warrants that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, legally authorized to enter into such Assignment and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partyAcceptance.
Appears in 3 contracts
Sources: Term Loan Agreement (Hines Real Estate Investment Trust Inc), Credit Agreement (Hines Real Estate Investment Trust Inc), Term Loan Agreement (Hines Real Estate Investment Trust Inc)
Certain Representations and Warranties. (a) Each InvestorGuarantor represents, severally warrants to and not jointly, hereby represents and warrants agrees with Lender as to each of the other Investors and to Parent that:
(i) such Investor has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);
(ii) if such Investor is not an individual, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub matters set forth in the Merger Agreement;
below: (va) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor Guarantor is an individual, he or she individual residing at the address set forth herein; (b) Guarantor has the full legal capacity, right, capacity and authority unconditional right to execute and deliver this Agreement Guaranty and each of the other Loan Documents to which Guarantor is or will be a party, and to perform his or her all of Guarantor's obligations hereunder and thereunder; (c) the execution and delivery by Guarantor of this Guaranty and each of the other Loan Documents to which Guarantor is or will be a party, and the performance by Guarantor of all of Guarantor's obligations hereunder and thereunder will not violate or be in conflict with any term or provision of (i) any law, rule statute, ordinance, regulation, code, (including, without limitation, any applicable usury or similar law), (ii) any judgments, orders, writs, injunction, or decrees or (iii) any mortgages, indentures, leases, licenses, agreements, understandings, instruments, contracts, proposed transactions or other obligation of Guarantor or to which Guarantor is a party or by which Guarantor, or any material part of Guarantor's assets and properties, may be bound or subject, and will not result in the creation or imposition of any Lien upon any of Guarantor's assets or properties; (d) Guarantor shall not take any action or inaction that may impair any material part of Guarantor's assets and properties; (e) no spousal consent is licenses, permits, franchises, approvals, consents, waivers, notices, authorizations, qualifications, concessions, or the like, or registration, declaration or filing are required (1) in connection with the due and valid execution, delivery and performance by such Investor Guarantor of this Agreement;
Guaranty or any other Loan Document to which Guarantor is or will be a party, or (vi2) to effect the executionlegality, delivery and performance validity, binding effect or enforceability of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents Guaranty; (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; and
(viiif) this Agreement constitutes a Guaranty is the legal, valid and binding obligation of such Investor Guarantor, enforceable against such Investor Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer terms and similar laws of general applicability relating to or affecting creditor’s rights provisions; and to general equitable principles.
(bg) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
Guarantor is solvent (i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreementi.e., the Equity Commitment Lettersaggregate fair value of Guarantor's assets exceeds the sum of Guarantor's actual and contingent liabilities) and, both before and after taking into account the Warrant Exchange AgreementGuarantor Obligations, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, Guarantor has adequate capital and the other Transaction Documents, there are, and is able to pay his debts as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatmentthey mature.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 2 contracts
Sources: Validity Guaranty (BTHC X Inc), Personal Guaranty (Mint Leasing Inc)
Certain Representations and Warranties. (a) Each InvestorLimitations, severally Covenants. By executing and not jointlydelivering an Assignment and Acceptance, hereby represents the parties to the assignment thereunder confirm to and warrants to agree with each of other and the other Investors and to Parent thatparties hereto as follows:
(i) such Investor has not entered intoother than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty, express or implied, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) assumes no responsibility with respect to the subject matter of any statements, warranties or representations made in or in connection with this Agreement or the Merger Agreement (other than the agreements expressly contemplated by execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Merger Agreementother Loan Documents or any other instrument or document furnished pursuant hereto or the attachment, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement)perfection or priority of any security interest or mortgage;
(ii) if such Investor is not an individualthe assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers and its affiliates, it is duly organizedrelated entities or subsidiaries or any other person primarily or secondarily liable in respect of any of the Liabilities, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct performance or observance by the Borrowers or any other person primarily secondarily liable in respect of its business makes such qualification necessaryany of the Liabilities or any of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such Investor is the sole record and lawful owner assignee confirms that it has received a copy of this Agreement, together with copies of the Rollover Shares or securities underlying most recent financial statement provided by the Rollover SharesBorrowers as required by the terms of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) none of such assignee will, independently and without reliance upon the assigning Lender, the Administrative Agent or any other Lender and based on such documents and information supplied by such Investor specifically for inclusion as it shall deem appropriate at the time, continue to make its own credit decisions in taking or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger not taking action under this Agreement;
(v) if such Investor assignee represents and warrants that (to the extent required herein) it is not an individual, it has all necessary power Eligible Assignee;
(vi) such assignee appoints and authority authorizes the Administrative Agent to execute, deliver take such action as agent on its behalf and perform its obligations to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority are required to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance be performed by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, it as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereina Lender; and
(viii) this Agreement constitutes a legal, valid such assignee represents and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance warrants that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, legally authorized to enter into such Assignment and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partyAcceptance.
Appears in 2 contracts
Sources: Loan Agreement (Dynamics Research Corp), Loan Agreement (Dynamics Research Corp)
Certain Representations and Warranties. (a) Each InvestorBy executing and delivering an Assignment and Acceptance, severally the parties to such Assignment and not jointly, hereby represents Acceptance thereby confirm to and warrants to agree with each of other and the other Investors and to Parent thatparties hereto as follows:
(i) such Investor has not entered intoother than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty, express or implied, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) assumes no responsibility with respect to the subject matter of any statements, warranties or representations made in or in connection with this Agreement or the Merger Agreement (other than the agreements expressly contemplated by execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Merger Agreementother Credit Documents or any other instrument or document furnished pursuant hereto or the attachment, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement)perfection or priority of any security interest;
(ii) if such Investor is not an individualthe assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower and its affiliates, it is duly organizedrelated entities or subsidiaries or any other person primarily or secondarily liable in respect of any of the Borrower’s Obligations, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct performance or observance by Borrower or any other person primarily secondarily liable in respect of its business makes such qualification necessaryany of the Borrower’s Obligations or any of their obligations under this Agreement or any of (he other Credit Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such Investor is the sole record assignee confirms that it has received copies of this Agreement and lawful owner the other Credit Documents, together with copies of the Rollover Shares or securities underlying most recent financial statements provided by Borrower, Guarantor and the Rollover Sharesother Pledgors, as required by the terms of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) none of the assignee will, independently and without reliance upon the assigning Lender, Administrative Agent or any other Lender and based on such documents and information supplied by such Investor specifically for inclusion as it shall deem appropriate at the time, continue to make its own credit decisions in taking or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger not taking action under this Agreement;
(v) if such Investor is not an individual, the assignee represents and warrants that it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is Eligible Assignee if required in connection with the execution, delivery and performance by such Investor of this Agreementhereunder;
(vi) the execution, delivery assignee appoints and performance of authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement has been duly authorized and the other Credit Documents as are delegated to Administrative Agent by all necessary actionthe terms hereof or thereof, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on together with such Investor or such Investor’s assetspowers as are reasonably incidental thereto;
(vii) the assignee agrees that it will perform in accordance with their terms all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for of the due execution, delivery and performance obligations that by the terms of this Agreement are required to be performed by such Investor, it as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereina Lender; and
(viii) this Agreement constitutes a legal, valid the assignee represents and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance warrants that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, legally authorized to enter into such Assignment and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partyAcceptance.
Appears in 1 contract
Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby The Pledgor represents and warrants warrants, (and, with respect to each of clause (e) below, covenants), except as set forth on Schedule 10 hereto, to the other Investors and to Parent Lender that:
(ia) such Investor has not entered intoAll shares of Pledged Stock are fully paid, duly and will not enter into prior properly issued, nonassessable and owned by the Pledgor free and clear of any Lien, preemptive right, claim and legend of any kind whatsoever, except those Liens granted to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange AgreementLender, and the Noteholder Conversion Agreement);Pledged Stock constitutes all of the outstanding securities of any class or kind of the Issuer owned by the Pledgor.
(iib) if No effective financing statement or other instrument similar in effect covering all or any part of the Pledged Collateral is on file in any recording office, other than such Investor is not an individualfinancing statement naming the Lender, it is duly organizedas a secured party.
(c) The pledge of the Pledged Collateral pursuant to this Agreement creates a valid and perfected security interest in the Pledged Collateral, validly existing and in good standing under securing the Laws payment of its jurisdiction of organizationthe Obligations, and is all filing and other actions necessary or desirable to perfect and protect such security interest have been or, concurrently herewith, will be duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties made or the conduct of its business makes such qualification necessary;taken.
(iiid) such Investor is the sole record and lawful owner of the Rollover Shares No authorization, approval or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority governmental authority or regulatory body (other than the UCC-1 financing statement listed on Schedule 10 attached hereto) is required in connection with for (i) the pledge by the Pledgor of the Pledged Collateral pursuant to this Agreement, the grant by the Pledgor of the assignment or security interest granted hereby or the execution, delivery or performance of this Agreement by such Investorthe Pledgor, subject to (ii) the filings, consents, approvals and other actions contemplated perfection of the Lender’s security interest in the Pledged Collateral or exercise by the Merger Agreement Lender of its rights and remedies provided for in this Agreement, or (iii) the consummation exercise by the Lender of the transactions contemplated therein; andvoting or other rights provided for in this Agreement or the remedies in respect of the Pledged Collateral pursuant to this Agreement (except as may be required in connection with the disposition of the Pledged Stock by laws affecting the offering and sale of securities generally).
(viiie) The Pledgor has full right, power and authority to enter into this Agreement and to grant the security interest in the Pledged Collateral made hereby, and this Agreement constitutes a the legal, valid and binding obligation of such Investor the Pledgor enforceable against such Investor the Pledgor in accordance with its terms, subject to except as the enforceability thereof may be (i) limited by bankruptcy, insolvency, fraudulent transfer and reorganization, moratorium or similar laws affecting the enforceability of general applicability relating to or affecting creditor’s creditors’ rights generally, and (ii) subject to general equitable principlesprinciples of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(bf) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant The Pledged Stock listed on Schedule 2(a) to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger SubAgreement, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice may be amended pursuant to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for time to time, constitutes the Intended Tax Treatmentissued and outstanding common stock of the Issuer that is owned by the Pledgor.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 1 contract
Certain Representations and Warranties. (a) Each InvestorBy executing and delivering an Assignment and Acceptance, severally the parties to such Assignment and not jointly, hereby represents Acceptance thereby confirm to and warrants to agree with each of other and the other Investors and to Parent thatparties hereto as follows:
(i) such Investor has not entered intoother than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty, express or implied, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) assumes no responsibility with respect to the subject matter of any statements, warranties or representations made in or in connection with this Agreement or the Merger Agreement (other than the agreements expressly contemplated by execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Merger Agreementother Credit Documents or any other instrument or document furnished pursuant hereto or the attachment, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement)perfection or priority of any security interest;
(ii) if such Investor is not an individualthe assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower and its affiliates, it is duly organizedrelated entities or subsidiaries or any other person primarily or secondarily liable in respect of any of the Borrower’s Obligations, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct performance or observance by Borrower or any other person primarily secondarily liable in respect of its business makes such qualification necessaryany of the Borrower’s Obligations or any of their obligations under this Agreement or any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such Investor is the sole record assignee confirms that it has received copies of this Agreement and lawful owner the other Credit Documents, together with copies of the Rollover Shares or securities underlying most recent financial statements provided by Borrower, Guarantor and the Rollover Sharesother Pledgors, as required by the terms of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) none of the assignee will, independently and without reliance upon the assigning Lender, Administrative Agent or any other Lender and based on such documents and information supplied by such Investor specifically for inclusion as it shall deem appropriate at the time, continue to make its own credit decisions in taking or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger not taking action under this Agreement;
(v) if such Investor is not an individual, the assignee represents and warrants that it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is Eligible Assignee if required in connection with the execution, delivery and performance by such Investor of this Agreementhereunder;
(vi) the execution, delivery assignee appoints and performance of authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement has been duly authorized and the other Credit Documents as are delegated to Administrative Agent by all necessary actionthe terms hereof or thereof, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on together with such Investor or such Investor’s assetspowers as are reasonably incidental thereto;
(vii) the assignee agrees that it will perform in accordance with their terms all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for of the due execution, delivery and performance obligations that by the terms of this Agreement are required to be performed by such Investor, it as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereina Lender; and
(viii) this Agreement constitutes a legal, valid the assignee represents and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance warrants that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, legally authorized to enter into such Assignment and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partyAcceptance.
Appears in 1 contract
Certain Representations and Warranties. (a) Each InvestorIn order to induce the Administrative Agent and Increasing Lender to enter into this Agreement, severally and not jointly, each Borrower hereby represents and warrants to the Administrative Agent and Increasing Lender that each of statement set forth in this Section 6 is true and correct on the other Investors and to Parent that:
(i) such Investor has not entered into, date hereof and will not enter into prior to be true and correct on the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, Effective Date. Each such representation and warranty shall survive the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter execution and delivery of this Agreement and shall not be qualified or limited by any investigation undertaken by the Merger Agreement (other than Administrative Agent or Increasing Lender or any actual or constructive knowledge the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);Administrative Agent or Increasing Lender may have or be charged with indicating that any such representation or warranty is inaccurate or incomplete in any respect.
(iia) if such Investor is not an individual, it Each Borrower is duly organized, validly existing authorized and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority empowered to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) ; and all corporate, partnership or other action on any Borrower’s part requisite for the due execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assetseffectively taken;
(viib) all consentsThis Agreement constitutes the legal, approvalsvalid and binding obligations of each Borrower and is enforceable in accordance with its terms (except that enforcement may be subject to any applicable bankruptcy, authorizations, permits of, filings with insolvency or similar laws generally affecting the enforcement of creditors’ rights and notifications to, any Governmental Authority necessary for subject to the due availability of equitable remedies);
(c) The execution, delivery and performance of this Agreement by such Investordo not and will not violate or create a default under any provisions of the articles or certificate of incorporation, formation or organization, as applicable, have been obtained bylaws, partnership agreement or made and all conditions thereof have been duly complied withother organizational documents of any Borrower, and no other action byor any contract, and no notice to agreement, instrument or filing with, requirements of any Governmental Authority to which any Borrower is required subject which violation or default could have a Material Adverse Effect, or result in connection with the execution, delivery creation or performance imposition of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation any Lien upon any Properties of the transactions contemplated therein; andany Borrower;
(viiid) this Agreement constitutes a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditorEach Borrower’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary actiondo not require notice to or filing or registration with, does not contravene any provision or the authorization, consent or approval of its partnership agreement, limited liability company agreement or other organizational documentsaction by any other Person, and does including, but not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications limited to, any Governmental Authority necessary for the due executionAuthority, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been except those obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereinmade;
(iiie) this Each representation and warranty of each Borrower contained in the Credit Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub the other Loan Documents is true and correct in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) all material respects on the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent date hereof and will be free true and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and correct as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect Effective Date and after giving effect to the voting or transfer of equity interests of Parent or any other aspect Borrowing of the affairs of ParentLoans being made hereunder (unless such representation and warranty is expressly limited to an earlier date); and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(cf) No Investor Default or any Event of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or Default has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to occurred which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partycontinuing.
Appears in 1 contract
Sources: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Certain Representations and Warranties. (a) Each InvestorIn order to induce the Administrative Agent and New Lender to enter into this Agreement, severally and not jointly, each Borrower hereby represents and warrants to the Administrative Agent and New Lender that each of statement set forth in this Section 6 is true and correct on the other Investors and to Parent that:
(i) such Investor has not entered into, date hereof and will not enter into prior to be true and correct on the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, Effective Date. Each such representation and warranty shall survive the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter execution and delivery of this Agreement and shall not be qualified or limited by any investigation undertaken by the Merger Agreement (other than Administrative Agent or New Lender or any actual or constructive knowledge the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);Administrative Agent or New Lender may have or be charged with indicating that any such representation or warranty is inaccurate or incomplete in any respect.
(iia) if such Investor is not an individual, it Each Borrower is duly organized, validly existing authorized and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority empowered to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) ; and all corporate, partnership or other action on any Borrower’s part requisite for the due execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assetseffectively taken;
(viib) all consentsThis Agreement constitutes the legal, approvalsvalid and binding obligations of each Borrower and is enforceable in accordance with its terms (except that enforcement may be subject to any applicable bankruptcy, authorizations, permits of, filings with insolvency or similar laws generally affecting the enforcement of creditors’ rights and notifications to, any Governmental Authority necessary for subject to the due availability of equitable remedies);
(c) The execution, delivery and performance of this Agreement by such Investordo not and will not violate or create a default under any provisions of the articles or certificate of incorporation, formation or organization, as applicable, have been obtained bylaws, partnership agreement or made and all conditions thereof have been duly complied withother organizational documents of any Borrower, and no other action byor any contract, and no notice to agreement, instrument or filing with, requirements of any Governmental Authority to which any Borrower is required subject which violation or default could have a Material Adverse Effect, or result in connection with the execution, delivery creation or performance imposition of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation any Lien upon any Properties of the transactions contemplated therein; andany Borrower;
(viiid) this Agreement constitutes a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditorEach Borrower’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary actiondo not require notice to or filing or registration with, does not contravene any provision or the authorization, consent or approval of its partnership agreement, limited liability company agreement or other organizational documentsaction by any other Person, and does including, but not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications limited to, any Governmental Authority necessary for the due executionAuthority, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been except those obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereinmade;
(iiie) this Each representation and warranty of each Borrower contained in the Credit Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub the other Loan Documents is true and correct in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) all material respects on the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent date hereof and will be free true and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and correct as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect Effective Date and after giving effect to the voting or transfer of equity interests of Parent or any other aspect Borrowing of the affairs of ParentLoans being made hereunder (unless such representation and warranty is expressly limited to an earlier date); and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(cf) No Investor Default or any Event of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or Default has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to occurred which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partycontinuing.
Appears in 1 contract
Sources: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Certain Representations and Warranties. (a) 3.5.1 Each Investor, severally and not jointly, Sponsor hereby represents and warrants to each of the other Investors and to Parent that:
Sponsors that (i) such Investor it owns the number of shares of Company Common Stock set forth opposite its name on Exhibit D hereto; (ii) it has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any other potential investor or group of investors, the Company, Company or any shareholder or securityholder of the Company (other than its Affiliates) Stockholders with respect to the subject matter of this Agreement or the Merger Agreement (Agreement, other than the agreements expressly contemplated by this Agreement, the Merger Agreement, Agreement and the Permitted Syndication, the Equity Debt Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);
; (iiiii) if such Investor is not an individual, it is duly organized, validly existing and in good standing under the Laws laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
; (iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
; (viv) the execution, delivery and performance of this Agreement has have been duly authorized by all necessary action, does action and do not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene or any material Lawlaw, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor Sponsor or such Investor’s its assets;
; (viivi) except for any consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority contemplated by the Merger Agreement, all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals Agreement; and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; and
(viiivii) this Agreement constitutes a legal, valid and binding obligation of such Investor Sponsor enforceable against such Investor Sponsor in accordance with its terms, subject to bankruptcyEnforceability Limitations. No Sponsor, insolvencyany of its Affiliates, fraudulent transfer Topco, any of its Subsidiaries or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty on behalf of such Sponsor or any of its Affiliates in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5 and similar no Sponsor, any of its Affiliates, Topco, any of its Subsidiaries or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5.
3.5.2 Topco hereby represents and warrants to the Sponsors that (i) the equity securities of Topco to be issued to the Sponsors pursuant to the Exchange shall be duly and validly authorized and issued, fully paid and nonassessable (if applicable), and free and clear of all liens, other than restrictions arising under applicable securities laws or the organizational documents of Topco, and good and valid title to such equity securities of Topco shall pass to the Sponsors upon the consummation of the Exchange; (ii) it is duly organized, validly existing and in good standing under the laws of general applicability relating its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or affecting creditor’s rights the conduct of its business makes such qualification necessary; (iii) it has all necessary power and authority to general equitable principles.
execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement; (b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(iiv) the execution, delivery and performance of this Agreement has have been duly authorized by all necessary action, does action and do not contravene any provision of its partnership agreement, limited liability company agreement organizational documents or other organizational documents, and does not contravene any material Lawlaw, regulation, rule, decree, order, judgment or contractual restriction binding on Parent Topco or its assets; (v) except for any consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority contemplated by the Merger Sub or Parent’s or Merger Sub’s assets;
(ii) Agreement, all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, Topco have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent Agreement; and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iiivi) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub Topco enforceable against Parent or Merger Sub Topco in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax TreatmentEnforceability Limitations.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 1 contract
Sources: Interim Investors' Agreement (HireRight Holdings Corp)
Certain Representations and Warranties. (a) Each InvestorLimitations, severally Covenants. By executing and not jointlydelivering an Assignment and Acceptance, hereby represents the parties to the assignment thereunder confirm to and warrants to agree with each of other and the other Investors and to Parent thatparties hereto as follows:
(i) such Investor has not entered intoother than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty, express or implied, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) assumes no responsibility with respect to the subject matter of any statements, warranties or representations made in or in connection with this Agreement or the Merger Agreement (other than the agreements expressly contemplated by execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Merger Agreementother Loan Documents or any other instrument or document furnished pursuant hereto or the attachment, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement)perfection or priority of any security interest or mortgage;
(ii) if such Investor is not an individualthe assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers and its affiliates, it is duly organizedrelated entities or subsidiaries or any other person primarily or secondarily liable in respect of any of the Liabilities, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct performance or observance by the Borrowers or any other person primarily secondarily liable in respect of its business makes such qualification necessaryany of the Liabilities or any of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such Investor is the sole record and lawful owner assignee confirms that it has received a copy of this Agreement, together with copies of the Rollover Shares or securities underlying most recent financial statement provided by the Rollover SharesBorrowers as required by the terms of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) none of such assignee will, independently and without reliance upon the assigning Lender, the Agents or any other Lender and based on such documents and information supplied by such Investor specifically for inclusion as it shall deem appropriate at the time, continue to make its own credit decisions in taking or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger not taking action under this Agreement;
(v) if such Investor assignee represents and warrants that (to the extent required herein) it is not an individual, it has all necessary power Eligible Assignee;
(vi) such assignee appoints and authority authorizes the Agents to execute, deliver take such action as agent on its behalf and perform its obligations to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority are required to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance be performed by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, it as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated thereina Lender; and
(viii) this Agreement constitutes a legal, valid such assignee represents and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance warrants that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, legally authorized to enter into such Assignment and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partyAcceptance.
Appears in 1 contract
Sources: Loan and Security Agreement (Dynamics Research Corp)
Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby 24.1 IHS represents and warrants to each N-Co as of the other Investors and to Parent thatdate of this Agreement:
(ia) such Investor has not entered into, IHS is a corporation duly organized and will not enter into prior to validly existing under the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder laws of the Company (other than its Affiliates) with respect to the subject matter State of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);Delaware.
(iib) if such Investor is not an individual, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it IHS has all necessary power and lawful authority to execute, deliver, and perform its obligations under, this Agreement.
(c) The execution and delivery by IHS of this Agreement, and the consummation by IHS of the transactions contemplated thereby, have been duly authorized by all necessary action of IHS; and, assuming due execution and delivery of this Agreement by N-Co this Agreement will constitute the legal, valid, and binding obligations of IHS, enforceable in accordance with the respective terms thereof.
(d) The execution and delivery of this Agreement by IHS and the consummation of the transactions contemplated hereby, will not:
(1) violate any provision of the organizational documents or by-laws of IHS;
(2) violate any judgement, order, or decree of any government entity against or binding upon IHS or its property or business; and/or
(3) result in the acceleration of any indebtedness of IHS.
(e) To IHS's knowledge, there are no outstanding judgments, orders, writs, injunctions or decrees of any government entity, and no pending legal proceedings against IHS which would have a material adverse effect on IHS's performance of its obligations under this Agreement.
24.2 N-Co represents and warrants to IHS as of the date of this Agreement:
(a) N-Co is a limited liability company duly organized and validly existing under the laws of the State of Delaware.
(b) N-Co has all necessary power and lawful authority to execute, deliver and perform its obligations under under, this Agreement in accordance with the terms of this Agreement Agreement.
(c) The execution and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor N-Co of this Agreement;
(vi) , and the executionconsummation by N-Co of the transactions contemplated thereby, delivery and performance of this Agreement has have been duly authorized by all necessary action, does not contravene any provision action of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), N-Co; and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with assuming due execution and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such InvestorIHS this Agreement will constitute the legal, as applicable, have been obtained or made and all conditions thereof have been duly complied withvalid, and no other action bybinding obligations of N-Co, and no notice to or filing with, any Governmental Authority is required enforceable in connection accordance with the execution, terms thereof.
(d) The execution and delivery or performance of this Agreement by such InvestorN-Co, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; andhereby, will not:
(viii1) this Agreement constitutes a legal, valid and binding obligation violate any provision of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar the organizational documents or by-laws of general applicability relating N-Co;
(2) require the consent of any Person;
(3) violate any judgment, order, or decree of any government entity against or binding upon N-Co or its property or business; and/or
(4) result in the acceleration of any indebtedness of N-Co.
(e) To N-Co's knowledge, there are no outstanding judgments, orders, writs, injunctions or decrees of any government entity, and no pending legal proceeding against N-Co, which would have a material adverse effect on N-Co's performance of its obligations under this Agreement.
24.3 IHS represents and warrants to or affecting creditor’s rights N-Co as of the date of this Agreement:
(a) The Company is a limited liability company duly organized and to general equitable principlesvalidly existing under the laws of the State of Delaware.
(b) ▇▇▇▇▇▇ The Company has all necessary power and Merger Sublawful authority to execute, jointly deliver, and severallyperform its obligations under, hereby represent and warrant to each of the Investors that:this Agreement.
(ic) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the The consummation of the transactions contemplated thereinhereby by the Company, will not:
(1) violate any provision of the organizational documents of the Company;
(iii2) this Agreement constitutes a legalviolate any judgement, valid and order, or decree of any government entity against or binding obligation of Parent upon the Company or Merger Sub enforceable against Parent its property or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;business; and/or
(iv3) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided result in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance acceleration of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as indebtedness of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax TreatmentCompany.
(cd) No Investor To IHS's knowledge, there are no outstanding judgments, orders, writs, injunctions or decrees of any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a partygovernment entity, and no Investor nor any pending legal proceedings against the Company which would have a material adverse effect on the Company's performance of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in obligations under this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 1 contract
Sources: Operating Agreement (Integrated Health Services Inc)
Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby represents and warrants to each of the other Investors and to Parent that:
(i) such Investor has not entered into, and will not enter into prior to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement);
(ii) if such Investor is not an individual, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and is duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties or the conduct of its business makes such qualification necessary;
(iii) such Investor is the sole record and lawful owner of the Rollover Shares or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by such Investor, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein; and
(viii) this Agreement constitutes a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles.
(b) ▇P▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇P▇▇▇▇▇ and Merger Sub, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 1 contract
Sources: Interim Investors' Agreement (SherpaVentures Fund II, LP)
Certain Representations and Warranties. (a) Each Investor, severally and not jointly, hereby The Pledgor represents and warrants warrants, (and, with respect to each of clause (e) below, covenants), except as set forth on Schedule 10 hereto, to the other Investors and to Parent Lender that:
(ia) such Investor has not entered intoAll shares of Pledged Stock are fully paid, duly and will not enter into prior properly issued, nonassessable and owned by the Pledgor free and clear of any Lien, preemptive right, claim and legend of any kind whatsoever, except those Liens granted to the Closing, any formal or informal agreement, arrangement or understanding with any potential investor or group of investors, the Company, or any shareholder or securityholder of the Company (other than its Affiliates) with respect to the subject matter of this Agreement or the Merger Agreement (other than the agreements expressly contemplated by this Agreement, the Merger Agreement, the Permitted Syndication, the Equity Commitment Letters, the Warrant Exchange AgreementLender, and the Noteholder Conversion Agreement);Pledged Stock constitutes all of the outstanding securities of any class or kind of the Issuer owned by the Pledgor.
(iib) if No effective financing statement or other instrument similar in effect covering all or any part of the Pledged Collateral is on file in any recording office, other than such Investor is not an individualfinancing statement naming the Lender, it is duly organizedas a secured party.
(c) The pledge of the Pledged Collateral pursuant to this Agreement creates a valid and perfected security interest in the Pledged Collateral, validly existing and in good standing under securing the Laws payment of its jurisdiction of organizationthe Obligations, and is all filing and other actions necessary or desirable to perfect and protect such security interest have been or, concurrently herewith, will be duly qualified to conduct business, and is in good standing, in each other jurisdiction where the ownership of its properties made or the conduct of its business makes such qualification necessary;taken.
(iiid) such Investor is the sole record and lawful owner of the Rollover Shares No authorization, approval or securities underlying the Rollover Shares;
(iv) none of the information supplied by such Investor specifically for inclusion or incorporation by reference in the Information Statement, Schedule 13E-3, or other filings contemplated by the Merger Agreement or otherwise required pursuant to applicable Law will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement;
(v) if such Investor is not an individual, it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement in accordance with the terms of this Agreement and if such Investor is an individual, he or she has full legal capacity, right, and authority to execute and deliver this Agreement and to perform his or her obligations hereunder and no spousal consent is required in connection with the execution, delivery and performance by such Investor of this Agreement;
(vi) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents (if the Investor is not an individual), and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on such Investor or such Investor’s assets;
(vii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by such Investor, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority governmental authority or regulatory body (other than the UCC-1 financing statement listed on Schedule 10 attached hereto) is required in connection with for (i) the pledge by the Pledgor of the Pledged Collateral pursuant to this Agreement, the grant by the Pledgor of the assignment or security interest granted hereby or the execution, delivery or performance of this Agreement by such Investorthe Pledgor, subject to (ii) the filings, consents, approvals and other actions contemplated perfection of the Lender’s security interest in the Pledged Collateral or exercise by the Merger Agreement Lender of its rights and remedies provided for in this Agreement, or (iii) the consummation exercise by the Lender of the transactions contemplated therein; andvoting or other rights provided for in this Agreement or the remedies in respect of the Pledged Collateral pursuant to this Agreement (except as may be required in connection with the disposition of the Pledged Stock by laws affecting the offering and sale of securities generally).
(viiie) The Pledgor has full right, power and authority to enter into this Agreement and to grant the security interest in the Pledged Collateral made hereby, and this Agreement constitutes a the legal, valid and binding obligation of such Investor the Pledgor enforceable against such Investor the Pledgor in accordance with its terms, subject to except as the enforceability thereof may be (i) limited by bankruptcy, insolvency, fraudulent transfer and reorganization, moratorium or similar laws affecting the enforceability of general applicability relating to or affecting creditor’s creditors’ rights generally, and (ii) subject to general equitable principlesprinciples of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(bf) ▇▇▇▇▇▇ and Merger Sub, jointly and severally, hereby represent and warrant The Pledged Stock listed on Schedule 2(a) to each of the Investors that:
(i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, does not contravene any provision of its partnership agreement, limited liability company agreement or other organizational documents, and does not contravene any material Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or Merger Sub or Parent’s or Merger Sub’s assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ and Merger SubAgreement, as applicable, have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice may be amended pursuant to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement by Parent and Merger Sub, subject to the filings, consents, approvals and other actions contemplated by the Merger Agreement for the consummation of the transactions contemplated therein;
(iii) this Agreement constitutes a legal, valid and binding obligation of Parent or Merger Sub enforceable against Parent or Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles;
(iv) the Rollover Shares will be duly authorized and validly issued, fully paid and nonassessable shares of Parent and will be free and clear from all Liens (other than restrictions under applicable federal and state securities Laws or as provided in the Shareholders’ Agreements);
(v) Parent and Merger Sub have not violated any applicable federal or state securities Laws in connection with the offer, sale or issuance of any of its equity interests;
(vi) except for the Merger Agreement, the Equity Commitment Letters, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Rollover Agreements, the Shareholders’ Agreement, and the other Transaction Documents, there are, and as of the Closing there will be, no agreements between Parent or any equity holders or Affiliates of Parent with respect to the voting or transfer of equity interests of Parent or any other aspect of the affairs of Parent; and
(vii) Parent and Merger Sub are not aware of any fact or circumstance that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for time to time, constitutes 100% of the Intended Tax Treatmentissued and outstanding common stock of the Issuer.
(c) No Investor or any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives makes or has made any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party, and no Investor nor any of its Affiliates, Parent, Merger Sub or any of their respective officers, employees, agents or representatives has relied on any express or implied representation or warranty in connection with the transactions contemplated hereby other than those expressly set forth in this Section 3.5, the Equity Commitment Letter, the Warrant Exchange Agreement, the Noteholder Conversion Agreement, the Merger Agreement, or any other Transaction Document to which it is a party.
Appears in 1 contract