Parent Representations and Warranties. Parent represents and warrants to each Person party to this Joinder Agreement and the Intercreditor Agreement the following: (a) It has the full power and authority and the legal right to make, deliver and perform, and has taken all necessary action, to authorize the execution, delivery and performance of this Joinder Agreement, and any and all other documents delivered by it in connection herewith and to fulfill its obligations under, and to consummate the transactions contemplated by, this Joinder Agreement and the Intercreditor Agreement, and no consent or authorization of, filing with, or other act by or in respect of any Governmental Authority, is required in connection herewith or therewith (except Lien filings done concurrently). (b) This Joinder Agreement constitutes the legal and binding obligation of Parent. (c) The execution, delivery and performance by Parent of this Joinder Agreement do not and will not conflict with or result in any breach or contravention of any New Agreement, any First Lien Credit Document or any Second Lien Credit Document. (d) No event has occurred and is continuing that would constitute a default or an event of default under the existing First Lien Credit Documents or the Second Lien Credit Documents. (e) Parent and any other applicable Grantor have performed in all material respects all agreements and satisfied all conditions which the Intercreditor Agreement provides shall be performed or satisfied by it on or before the date of this Joinder Agreement. (f) The New Agreements create for the benefit of the New First Lien Claimholder Representative a valid and perfected security interest in the Common Collateral securing the New First Lien Obligations, and all filings and other actions necessary or desirable to perfect or protect such security interest have been duly taken or arrangements therefor satisfactory to the New First Lien Claimholder Representative have been made, subject to no prior Liens other than those created in favor of the Second Lien Collateral Trustee, the existing First Lien Claimholder Representative, the First Lien Claimholders or any Liens prior to any of the foregoing, and as otherwise not prohibited by any First Lien Credit Documents in existence immediately prior to the date hereof.
Appears in 1 contract
Parent Representations and Warranties. The Parent hereby represents and warrants to each Person party to this Joinder Agreement and Buyer as of the Intercreditor Agreement the followingdate hereof as follows:
(a) It Parent is a corporation, duly incorporated, validly existing and in good standing under the Laws of The Commonwealth of Massachusetts, and has the full all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. Parent is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property or assets owned, leased or operated by the Parent or the nature of the business conducted by Parent makes such qualification necessary, except where the failure to be so duly qualified or licensed and in good standing would not individually or in the aggregate have a material adverse effect. Parent has heretofore made available to Buyer complete and correct copies of the Articles of Organization and by-laws of Parent, each as amended and as currently in effect, and no amendments have been made thereto or have been authorized since the date thereof.
(b) Parent has the requisite power and authority to execute and deliver this Agreement and the legal right Transaction Documents to makewhich the Parent is a party, deliver to carry out its obligations hereunder and perform, thereunder and has taken all to consummate the transactions contemplated hereby and thereby. No other proceedings or actions on the part of Parent are necessary action, to authorize the execution, delivery and performance of this Joinder Agreement, and any and all other documents delivered by it in connection herewith and Agreement or the Transaction Documents to fulfill its obligations under, and to consummate which the Parent is a party or the consummation of the transactions contemplated byhereby or thereby. This Agreement has been duly executed and delivered by Parent and constitutes a valid and binding agreement of Parent, this Joinder Agreement enforceable against it in accordance with its terms and when each other Transaction Documents to which the Intercreditor AgreementParent is or will be a party has been duly executed and delivered by the Parent, and no consent or authorization of, filing with, or other act by or in respect of any Governmental Authority, is required in connection herewith or therewith (except Lien filings done concurrently).
(b) This Joinder Agreement constitutes the such Transaction Documents will constitute a legal and binding obligation of Parentthe Parent enforceable against it in accordance with its terms, except that (a) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating to or limiting creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
(c) The execution, delivery and performance by Parent of this Joinder Agreement do does not and will not conflict with or result have any direct ownership in any breach or contravention of any New Agreement, any First Lien Credit Document or any Second Lien Credit Document.
(d) No event has occurred and is continuing that would constitute a default or an event of default under the existing First Lien Credit Documents or the Second Lien Credit Documents.
(e) Parent and any other applicable Grantor have performed in all material respects all agreements and satisfied all conditions which the Intercreditor Agreement provides shall be performed or satisfied by it on or before the date of this Joinder Agreement.
(f) The New Agreements create for the benefit of the New First Lien Claimholder Representative a valid and perfected security interest in the Common Collateral securing the New First Lien Obligations, and all filings and other actions necessary or desirable to perfect or protect such security interest have been duly taken or arrangements therefor satisfactory to the New First Lien Claimholder Representative have been made, subject to no prior Liens other than those created in favor of the Second Lien Collateral Trustee, the existing First Lien Claimholder Representative, the First Lien Claimholders or any Liens prior to any of the foregoing, and as otherwise not prohibited by any First Lien Credit Documents in existence immediately prior to the date hereofAcquired Assets.
Appears in 1 contract
Parent Representations and Warranties. Parent represents and warrants to each Person party to this Joinder Agreement and the Intercreditor Agreement the followingSubscriber that:
(a) It As of the date hereof, Parent is, and as of the Closing, Parent will be, a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Parent has the full corporate power and authority to own, lease and the legal right operate its properties and conduct its business as presently conducted and to makeenter into, deliver and performperform its obligations under this Subscription Agreement. This Subscription Agreement has been duly authorized, executed and delivered by Parent and is enforceable against Parent in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and has taken all necessary action(ii) principles of equity, to authorize the execution, delivery and performance of this Joinder Agreement, and any and all other documents delivered by it in connection herewith and to fulfill its obligations under, and to consummate the transactions contemplated by, this Joinder Agreement and the Intercreditor Agreement, and no consent whether considered at law or authorization of, filing with, or other act by or in respect of any Governmental Authority, is required in connection herewith or therewith (except Lien filings done concurrently)equity.
(b) This Joinder Agreement constitutes The Purchased Securities have been duly authorized and, when issued and delivered to the legal Subscriber against full payment therefor in accordance with the terms of this Subscription Agreement, the Purchased Securities will be validly issued, fully paid and binding obligation non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under Parent’s certificate of incorporation, as amended, or under the Delaware General Corporation Law.
(c) The execution, delivery issuance and performance sale of the Purchased Securities and the compliance by Parent with all of the provisions of this Joinder Subscription Agreement do not and the consummation of the transactions herein will be done in accordance with the Nasdaq marketplace rules and will not conflict with or result in any a material breach or contravention material violation of any New Agreementof the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any First Lien Credit Document lien, charge or encumbrance upon any of the property or assets of Parent or any Second Lien Credit Documentof its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, license, lease or any other agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which any of the property or assets of Parent is subject, which would have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Parent (a “Material Adverse Effect”) or materially affect the validity of the Purchased Securities or the legal authority of Parent to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any material violation of the provisions of the organizational documents of Parent; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Parent or any of its properties that would have a Material Adverse Effect or materially affect the validity of the Purchased Securities or the legal authority of Parent to comply with this Subscription Agreement; subject, in the case of the foregoing clauses (i) and (iii) with respect to the consummation of the transactions therein contemplated.
(d) No event Parent has occurred and not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar fee in connection with the transactions contemplated by this Subscription Agreement for which the Subscriber could become liable. Parent is continuing not aware of any person that would constitute a default has been or an event will be paid (directly or indirectly) remuneration for solicitation of default under purchasers in connection with the existing First Lien Credit Documents or sale of any Purchased Securities in the Second Lien Credit DocumentsOffering.
(e) Parent is not, and any other applicable Grantor have performed in all material respects all agreements and satisfied all conditions which immediately after receipt of payment for the Intercreditor Agreement provides shall be performed or satisfied by it on or before Purchased Securities, will not be, an “investment company” within the date meaning of this Joinder Agreementthe Investment Company Act of 1940, as amended.
(f) The New Agreements create for Assuming the benefit accuracy of the New First Lien Claimholder Representative a valid Subscriber’s representations and perfected security interest warranties set forth in Section 6, in connection with the offer, sale and issuance of the Purchased Securities in the Common Collateral securing manner contemplated by this Subscription Agreement, it is not necessary to register the New First Lien ObligationsPurchased Securities under the Securities Act of 1933, and as amended (the “Securities Act”).
(g) Parent has filed all filings and other actions necessary reports required to be filed by it under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or desirable to perfect 15(d) thereof, since its initial public offering (the “IPO”) (such reports, together with any materials filed or protect furnished thereafter by Parent under the Exchange Act, whether or not any such security interest have been duly taken or arrangements therefor satisfactory to the New First Lien Claimholder Representative have been made, subject to no prior Liens other than those created in favor of the Second Lien Collateral Trusteereports were required, the existing First Lien Claimholder Representative“SEC Reports”). As of their respective dates (or, the First Lien Claimholders if amended or any Liens prior to any of the foregoing, and as otherwise not prohibited superseded by any First Lien Credit Documents in existence immediately a filing prior to the Closing Date, then on the date hereofof such filing), the SEC Reports filed by Parent complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) promulgated thereunder, and none of the SEC Reports, when filed (or, if amended or superseded by a filing prior to the Closing Date, then on the date of such filing) by Parent, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of Parent included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or, if amended or superseded by a filing prior to the Closing Date, then on the date of such filing). Such financial statements (excluding for the avoidance of doubt, any pro forma financial statements which include the financial information of Target) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements, the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary statements, and fairly present in all material respects the consolidated financial position of Parent and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. All material agreements to which Parent is a party or to which the property or assets of Parent `are subject are included as part of or identified in the SEC Reports, to the extent such agreements are required to be included or identified pursuant to the rules and regulations of the SEC.
(h) Since the date of the latest audited financial statements included within the SEC Reports, except as disclosed in the SEC Reports, (i) there has been no event, occurrence or development that, individually or in the aggregate, has had or that would result in a Material Adverse Effect, (ii) Parent has not incurred any material liabilities other than (A) trade payables, transaction expenses and accrued expenses incurred in the ordinary course of business (including indebtedness to pay for the foregoing) and (B) liabilities not required to be reflected in Parent’s financial statements pursuant to GAAP or required to be disclosed in filings made with the SEC, (iii) Parent has not materially altered its method of accounting or changed its auditors, except as disclosed in its SEC Reports, (iv) Parent has not declared or made any dividend or distribution of cash or other property to its stockholders, in their capacities as such, or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (other than as required by its organizational documents and the Prospectus), and (v) Parent has not issued any equity securities to any officer, director or Affiliate. Parent has not taken any steps to seek protection pursuant to any bankruptcy law nor does Parent have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so (subject to Parent completing a Business Combination prior to its deadline to do so).
(i) Parent understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Subscriber.
Appears in 1 contract