REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, represents and warrants to, and agrees with, each Lender and Purchaser as set forth below in this Article III, subject to the exceptions disclosed in writing in the Company Party Disclosure Schedules as of the date hereof, each of which is being relied upon by such Purchaser or Lender, as the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.12, are referred to herein as the “Company Party Disclosure Schedules.” (a) Each Company Party is an entity of the type identified on Section 3.1(a) of the Company Party Disclosure Schedules, duly organized, validly existing and in good standing under the laws of its state of organization identified on Section 3.1(a) of the Company Party Disclosure Schedules. Each Company Party is in good standing and qualified to do business in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of the Company Party Disclosure Schedules and there are no Excluded Subsidiaries. (b) The execution, delivery, and performance by each Company Party of this Agreement, the Indenture, the Registration Rights Agreement, any Notes, and the Ancillary Documents (collectively, the “Equity Documents”) to which it is a party and the consummation of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Documents or (B) any material provision of any law or any contractual restriction binding on or affecting such Company Party, and (iv) will not result in or require the creation or imposition of any Lien prohibited by the Loan Agreement. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases its property. (c) No consent, order, authorization, or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of the Equity Documents to which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) in the state and county filing offices, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereof, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its property, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change. (d) Reserved (i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, Representative or any Lender or Purchaser, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company Parties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period or periods covered by the projections may differ materially from such projections). (ii) Since December 31, 2013, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports. (f) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished. (i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property. (ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
Appears in 2 contracts
Sources: Exchange and Purchase Agreement (Gevo, Inc.), Exchange and Purchase Agreement (Gevo, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, Party represents and warrants tothat, and agrees with, each Lender and Purchaser as set forth below in this Article III, subject to the exceptions disclosed in writing in the Company Party Disclosure Schedules as of the date hereof, each of which is being relied upon by such Purchaser or Lender, as Agreement Effective Date and the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.12, are referred to herein as the “Company Party Disclosure Schedules.”Closing Date:
(a) Each Company Party is an entity of the type identified on Section 3.1(a) of The Restructuring Term Sheet describes the Company Party Disclosure Schedules, duly organized, validly existing and in good standing Parties’ outstanding prepetition debt being restructured under the laws Brazilian RJ Plan;
(b) to the best of its state knowledge, no order has been made, petition presented or resolution passed for the winding up of organization identified on Section 3.1(a) or appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any the Company Party Disclosure Schedules. Each Company Party is in good standing and qualified Parties (or, with respect to do business in each other jurisdiction where its ownership any Affiliate, only to the extent a filing by any such Affiliate has, or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing could not reasonably be expected to result in have, a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of material adverse effect on the Company Party Disclosure Schedules and there are no Excluded Subsidiaries.
(b) The executioncontent, delivery, and performance by each Company Party timing or implementation of this Agreement, the Indenture, the Registration Rights Agreement, any Notes, and the Ancillary Documents (collectively, the “Equity Documents”) to which it is a party and the consummation of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Restructuring Documents or (Bthe Restructuring); provided, however, that this Section 8(b) any material provision does not apply to the commencement of any law Brazilian RJ Proceeding or English Scheme or any contractual restriction binding on or affecting such Company Party, and (iv) will not result other process in or require each case necessary to implement the creation or imposition of any Lien prohibited by the Loan Agreement. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases its property.Restructuring;
(c) No consent, order, authorization, or approval or other action by, except as otherwise disclosed to the Noteholder Ad Hoc Group Advisors and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party as far as each of the Equity Documents to Company Parties is aware, no litigation, arbitration nor administrative proceedings of or before any court, arbitral body or agency has been commenced against the Company Parties which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) in the state and county filing offices, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereof, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its property, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not may reasonably be expected to result in restrain its entry into, or the performance of its obligations under this Agreement, or which, if adversely determined, would reasonably be expected to have a Material Adverse Change.material adverse effect on the content, timing or implementation of this Agreement, the Restructuring Documents or the Restructuring;
(d) Reservedit does not have any limitation or restriction (whether imposed by law, rule, regulation, court order or otherwise or as may have been agreed to pursuant to a consent decree, settlement or the like) upon the ability to operate its business in the ordinary course;
(ie) All financial statements to the best of each of the Company Parties’ knowledge, no representation or warranty or other statement or disclosure made by any of the Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser by or on behalf of any Company Party or Subsidiary Parties in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document otherwise in connection with the transactions contemplated hereby Restructuring contains any untrue statement of material fact or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP omits a material fact; and
(except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustmentsf) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, Representative or any Lender or Purchaser, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control each of the Company Parties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period or periods covered by the projections may differ materially from such projections).
(ii) Since December 31, 2013, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports.
(f) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection ’ entry into this Agreement is consistent with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) each of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its propertyParties’ fiduciary duties.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, represents and warrants to, and agrees with, each Lender and Purchaser Holder as set forth below in this Article IIISection 3.1; provided, that each representation, warranty or agreement in this Section 3.1 shall be qualified by, and subject to, the exceptions, qualifications and other disclosure set forth in a written schedule delivered by each Company Party to the exceptions disclosed in writing in the Company Party Disclosure Schedules as of the date hereof, each of which is being relied upon by such Purchaser or Lender, as the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered Holders pursuant to Section 4.124.11 (all such schedules, are referred to herein as together, the “Company Party Parties Disclosure Schedules”) in which each representation, warranty or statement that is so qualified, shall be identified by reference to the paragraph of this Section 3.1 to which such qualification applies.”
(a) Each Company Party is an entity of the type identified on Section 3.1(a) of the Company Party Disclosure Schedules, duly organized, validly existing and in good standing under the laws of its state of organization identified on Section 3.1(a) of the Company Party Disclosure Schedules. Each Company Party is in good standing and qualified to do business in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing or so qualified could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of the Company Party Disclosure Schedules and there are no Excluded SubsidiariesSchedules.
(b) The execution, delivery, and performance by each Company Party of this Agreement, the New Indenture, any Notes, the Registration Rights Agreement, any Notes, Agreement and the Ancillary Documents documents contemplated thereby (collectively, the “Equity Documents”) ), and, as of the Exchange Date and each Option Closing Date, the Security Instruments, to which it is a party and the consummation of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing corporate or other powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Documents or (B) any material provision of any law or any contractual restriction binding on or affecting such Company Party, and (iv) will not result in or require the creation or imposition of any Lien prohibited by other than Liens granted under the Loan AgreementSecurity Instruments. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases and/or lease its propertyProperty.
(c) No consent, order, authorization, or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of the Equity Documents to which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) mortgages in the state and county filing offices, which will be filed on or before the Exchange Date, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (viv) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereofNew Indenture Trustee on the Exchange Date, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its propertyProperty, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change.
(d) Reserved
(i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, the Representative or any Lender or Purchaser Holder by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, the Representative or any Lender or PurchaserHolder, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company Parties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period or periods covered by the projections may differ materially from such projections).
(ii) Since December 31, 20132018, no event or circumstance has occurred that could reasonably be expected to cause a Material Adverse Change has occurred that and has not been previously disclosed in the SEC ReportsReports (as defined below).
(fe) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnishedReserved.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i3.1(f)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m3.1(k) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective propertyProperty, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
(g) All material Returns required to be filed by or on behalf of any Company Party or any member of the Controlled Group (hereafter collectively called the “Tax Group”) have been duly filed on a timely basis or appropriate extensions have been obtained and such Returns are and will be true, complete and correct, except where the failure to so file would not be reasonably expected to cause a Material Adverse Change; and all Taxes shown to be payable on the Returns or on subsequent assessments with respect thereto will have been paid in full on a timely basis, and no other Taxes will be payable by the Tax Group with respect to items or periods covered by such Returns, except in each case to the extent of (i) reserves reflected in the Financial Statements, or (ii) Taxes that are being contested in good faith.
(h) No Company Party nor any member of the Controlled Group is a party to, or has incurred any obligation or liability under, any Plan or Multiemployer Plan.
(i) Each Company Party has good title to, or valid leasehold interest in, all of its material Properties, free and clear of all Liens except for, on the date hereof, Existing Permitted Liens and, on and after the Exchange Date, New Permitted Liens. The material Properties used or to be used in the continuing operations of each Company Party are in good repair, working order and condition, ordinary wear, tear, casualty, condemnation and Permitted Dispositions excepted (except where failure to so maintain, preserve, repair, renew or replace such assets would not reasonably be expected to result in a Material Adverse Change). Neither the business nor the material Properties of the Company Parties, taken as a whole, has been materially and adversely affected as a result of any fire, explosion, earthquake, flood, drought, windstorm, accident, strike or other labor disturbance, embargo, requisition or taking of Property or cancellation of contracts, Permits, or concessions by a Governmental Authority, riot, activities of armed forces, or acts of God or of any public enemy.
(ii) Section 3.1(i)(ii) of the Company Party Disclosure Schedules contains a true and complete list of each interest in (A) Real Property (1) owned by each Company Party and describes the type of interest therein held by such Company Party and (2) leased or subleased by any Company Party, as lessee or sublessee and describes the type of interest therein held by such Company Party and (B) any material Property (1) owned by any Company Party and describes the type of interest therein held by such Company Party and (2) leased or subleased by any Company Party, as lessee or sublessee and describes the type of interest therein held by such Company Party.
(iii) No Company Party has received any notice of, or has any Knowledge of, the occurrence or pendency or contemplation of any Casualty Event currently affecting all or any material portion of its Property.
(iv) Each Company Party owns or otherwise has rights to use all of the material Property that is necessary for the operation of its business as currently conducted, and neither such ownership nor such other rights with respect to the foregoing infringe on the rights of any Person other than such infringement (A) described on Section 3.1(i)(iv) of the Company Party Disclosure Schedules and (B) which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. No claim has been made and remains outstanding that any Company Party’s use of any material Property does or may violate the rights of any third party other than claims described on Section 3.1(i)(iv) of the Company Party Disclosure Schedules or other claims that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
(i) Other than those identified on Section 3.1(j) of the Company Party Disclosure Schedules, no Company Party is a party to any indenture, loan, or credit agreement or any lease or other agreement or instrument, the breach of which, or subject to any charter or corporate restriction, the breach of which, or provision of applicable law or governmental regulation, the compliance with which, in each case, could reasonably be expected to cause a Material Adverse Change. No Company Party is in default under or with respect to any contract, agreement, lease, or other instrument to which such Company Party is a party other than those defaults that could not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Change. No Company Party has received any notice of default under any Material Contract to which such Company Party is a party a copy of which has not been delivered to the Representative.
(ii) No Default has occurred and is continuing.
(i) Except as could not reasonably be expected to cause a Material Adverse Change, each Company Party and each Subsidiary of any Company Party (A) has obtained all Environmental Permits necessary for the ownership and operation of its respective Properties and the conduct of its respective businesses; (B) has at all times been and is in material compliance with all terms and conditions of such Environmental Permits and with all other material requirements of applicable Environmental Laws; (C) has not received notice of any material violation or alleged violation of any Environmental Law or Permit; and (D) is not subject to any actual, pending or to any Company Party’s Knowledge, threatened Environmental Claim.
(ii) To each Company Party’s Knowledge, none of the present or previously owned or operated Property of any Company Party or of any of its current or former Subsidiaries, wherever located, (A) has been placed on or proposed to be placed on the National Priorities List, or its state or local analogs, or have been otherwise investigated, designated, listed, or identified as a potential site by any Governmental Authority for a Response that could reasonably be expected to cause a Material Adverse Change; (B) is subject to a Lien, arising under or in connection with any Environmental Laws, that attaches to any revenues or to any Property owned, leased or operated by any Company Party or any of its Subsidiaries, wherever located, which could reasonably be expected to cause a Material Adverse Change; or (C) has been the site of any Release of Hazardous Substances from present or past operations which has caused at the site or at any third party site any condition that has resulted in or could reasonably be expected to result in the need for Response that would cause a Material Adverse Change.
(iii) Without limiting the foregoing, in the course of carrying out any Response as to any of their presently or formerly owned, leased or operated Property, Company Parties, along with each of their Subsidiaries, are in material compliance with all obligations imposed by any Governmental Authority as to such Response. In addition, there are no facts, circumstances, conditions or occurrences with respect to any Property owned, leased or operated by any Company Party or any of its Subsidiaries that could reasonably be expected to form the basis of an Environmental Claim under Environmental Laws that could reasonably be expected to result in a Material Adverse Change.
(i) Other than as set forth on Schedule 3.1(l) of the Company Party Disclosure Schedules, (i) the Company Parties possess all authorizations, Permits, licenses, patents, patent rights or licenses, trademarks, trademark rights, trade names rights, copyrights and other Intellectual Property which are necessary to the conduct of their business (provided that the forgoing is not and shall not be deemed to be a representation or warranty of any kind with respect to infringement of Intellectual Property rights of any person) other than as would not reasonably be expected to result in a Material Adverse Change and (ii) the Company Parties manage and operate their business in all material respects in accordance with all applicable Legal Requirements and prudent industry practices other than as would not reasonably be expected to result in a Material Adverse Change.
(ii) Other than as would not reasonably be expected to result in a Material Adverse Change, no written claim has been asserted and is pending by any person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property owned by or licensed to a Company Party, other than as set forth on Schedule 3.1(l)(ii) of the Company Party Disclosure Schedules. The use of such Intellectual Property by any Company Party does not infringe the rights of any Person, except (i) as described on Schedule 3.1(l) of the Company Party Disclosure Schedules and (ii) except for such claims and infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each The Company, ECD UK Subsidiary and the Securityholder Representative (each, a “Company Party”) each hereby represent and warrant to the Parent Parties that each of the Company Partiesfollowing representations and warranties are true, jointly correct and severally, represents and warrants to, and agrees with, each Lender and Purchaser as set forth below in this Article III, subject to the exceptions disclosed in writing in the Company Party Disclosure Schedules complete as of the date hereof, each of which is being relied upon by such Purchaser or Lender, this Amendment and as the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.12, are referred to herein as the “Company Party Disclosure Schedules.”Closing Date:
(a) Each Company Party is an entity has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby, in the case of the type identified on Section 3.1(a) Merger, subject to receipt of the Company Party Disclosure Schedules, duly organized, validly existing Stockholder Approval. The execution and in good standing under the laws of its state of organization identified on Section 3.1(a) of the Company Party Disclosure Schedules. Each Company Party is in good standing and qualified to do business in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of the Company Party Disclosure Schedules and there are no Excluded Subsidiaries.
(b) The execution, delivery, and performance delivery by each Company Party of this Agreement, the Indenture, the Registration Rights Agreement, any Notes, and the Ancillary Documents (collectively, the “Equity Documents”) to which it is a party Amendment and the consummation by each Company Party of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing actioncorporate action on the part of each Company Party. No other corporate proceedings on the part of either Company Party are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment (other than, in the case of the Merger, the receipt of the Company Stockholder Approval). This Amendment has been duly executed and delivered by each Company Party and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of such Company Party, enforceable against each Company Party in accordance with its terms, subject to the Enforceability Exceptions.
(b) None of the execution, delivery or performance by either Company Party of this Amendment or the consummation by such Company Party of the transactions contemplated hereby does or will, in each case, subject to receipt of the Company Stockholder Approval, (i) contravene or conflict with the contravene or conflict with the organizational or constitutive documents of the Company Parties, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to the Company Parties or to any of its respective properties, rights or assets, (iii) do not contravene (A) such Company Party’s Organizational Documents require consent, approval or waiver under, (B) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (C) violate, (D) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of the Company Parties or to a loss of any material benefit to which the Company Parties are entitled, in the case of each of clauses (A) – (D), under any provision of any law Permit, Contract or other instrument or obligations binding upon the Company Parties or any contractual restriction binding on of their respective properties, rights or affecting such Company Partyassets, and or (iv) will not result in or require the creation or imposition of any Lien prohibited by the Loan Agreement. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases its property.
(c) No consent, order, authorization, or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of the Equity Documents to which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (iPermitted Liens) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) in the state and county filing offices, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereof, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its property, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change.
(d) Reserved
(i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, Representative or any Lender or Purchaser, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company Parties’ properties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period rights or periods covered by the projections may differ materially from such projections)assets.
(ii) Since December 31, 2013, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports.
(f) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, Party hereby represents and warrants to, to each Stockholder and agrees with, each Lender and Purchaser as set forth below in this Article III, subject to the exceptions disclosed in writing in the Company Party Disclosure Schedules Parent Entities as of the date hereof, each of which is being relied upon by such Purchaser or Lender, as the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.12, are referred to herein as the “Company Party Disclosure Schedules.”follows:
(a) Each The Company Party is an entity of the type identified on Section 3.1(a) of the Company Party Disclosure Schedules, duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to execute and deliver and perform its state obligations under this Agreement and to perform the obligations contemplated herein, and has taken all necessary action to duly authorize the execution, delivery and performance of organization identified on Section 3.1(a) of the Company Party Disclosure Schedulesthis Agreement. Each Company Party Holdings is an entity duly organized, validly existing and in good standing and qualified to do business in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where under the failure to be in good standing could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) laws of the Company Party Disclosure Schedules State of Delaware and there are no Excluded Subsidiarieshas the limited liability company power and authority to execute and deliver and perform its obligations under this Agreement and to perform the obligations contemplated herein, and has taken all necessary action to duly authorize the execution, delivery and performance of this Agreement.
(b) The executionThis Agreement has been duly authorized, deliveryexecuted and delivered by the Company Parties, and, assuming this Agreement constitutes the legal, valid and binding obligations of the other parties hereto, constitutes the legal, valid and binding obligations of each Company Party, and performance by each are enforceable against such Company Party in accordance with its terms, subject to bankruptcy, insolvency (including all legal requirements relating to fraudulent transfers), reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and subject to general principles of equity.
(c) Assuming compliance with the applicable provisions of the HSR Act, any applicable filing, notification or approval in any foreign jurisdiction required by Antitrust Laws and Foreign Investment Laws, the execution and delivery of this AgreementAgreement by the Company Parties, the Indenture, the Registration Rights Agreement, any Notes, and the Ancillary Documents (collectively, the “Equity Documents”) to which it is a party and the consummation of the transactions contemplated hereby and thereby by this Agreement, will not: (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Documents or (B) any material provision of any law or any contractual restriction binding on or affecting such Company Party, and (iv) will not result in or require the creation or imposition of any Lien prohibited by the Loan Agreement. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases its property.
(c) No consent, order, authorizationcause a violation, or approval or other action bya default, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of any applicable legal requirement or decree, order or judgment applicable to such Company Party, or to which such Company Party is subject; or (ii) conflict with, result in a breach of, or constitute a default on the Equity Documents part of any Company Party under any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Company Party is a party or by which such Company Party or its assets are bound, except for such violations, defaults or conflicts as would not, individually or in the aggregate, prevent or materially delay or impair the performance by such Company Party of any of its obligations under this Agreement. Except as may be required by the Exchange Act (including the filing with the SEC of the Schedule 14D-9), any “anti-takeover” laws, the DGCL, in connection with the HSR Act, any filing, notification or approval in any foreign jurisdiction required by Antitrust Laws and Foreign Investment Laws, no Company Party nor any of its Affiliates are required to make any filing with or give any notice to, or to obtain any consent or approval from, any Person at or prior to the consummation of the transactions contemplated hereby in connection with the execution and therebydelivery of this Agreement by any Company Party, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) in the state and county filing officesother than such filings, (ii) those notifications, approvals, notices or consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereof, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its property, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change.
(d) Reserved
(i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, Representative or any Lender or Purchaser, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingenciesthis Agreement or, many of which are beyond the control of the Company Partiesif not obtained, and no assurances can be given that such projections will be realizedmade or given, and are not to be viewed as factswould not, and that actual results during the period individually or periods covered by the projections may differ materially from such projections).
(ii) Since December 31, 2013, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports.
(f) All factual information taken as a whole (other than forward looking informationaggregate, projections, estimates, projections and pro forma financial information) heretofore prevent or contemporaneously furnished by materially delay or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with impair the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished performance by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts obligations under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its propertythis Agreement.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, represents and warrants to, and agrees with, each Lender and Purchaser Holder as set forth below in this Article III, subject to the exceptions disclosed in writing in the Company Party Disclosure Schedules as of the date hereof, each of which is being relied upon by such Purchaser or Lender, as the case may be, Holder as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.124.11, are referred to herein as the “Company Party Disclosure Schedules.”
(a) Each Company Party is an entity of the type identified on Section 3.1(a) of the Company Party Disclosure Schedules, duly organized, validly existing and in good standing under the laws of its state of organization identified on Section 3.1(a) of the Company Party Disclosure Schedules. Each Company Party is in good standing and qualified to do business in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of the Company Party Disclosure Schedules and there are no Excluded SubsidiariesSchedules.
(b) The execution, delivery, and performance by each Company Party of this Agreement, the New Indenture, any Notes, the Registration Rights Agreement, any Notes, Agreement and the Ancillary Documents documents contemplated thereby (collectively, the “Equity Documents”) ), and, as of the Exchange Date and each Option Closing Date, the Security Instruments, to which it is a party and the consummation of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Documents or (B) any material provision of any law or any contractual restriction binding on or affecting such Company Party, and (iv) will not result in or require the creation or imposition of any Lien prohibited by the Loan AgreementLien. Each Company Party has all requisite power and authority to carry on its business as now conducted and proposed to be conducted and to own and leases and/or lease its propertyProperty.
(c) No consent, order, authorization, or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of the Equity Documents to which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) mortgages in the state and county filing offices, which will be filed on or before the Exchange Date, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals Proposal (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereofNew Indenture Trustee on the Exchange Date, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its propertyProperty, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change.
(d) Reserved
(i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser Holder by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, the Representative or any Lender or PurchaserHolder, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company Parties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period or periods covered by the projections may differ materially from such projections).
(ii) Since December 31, 20132016, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports.
(f) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in a Material Adverse Change.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. Each of the Company Parties, jointly and severally, represents and warrants to, and agrees with, each Lender and Purchaser Except as set forth below (i) in this Article III, subject the disclosure schedule delivered by the Company Parties to the exceptions disclosed in writing Purchaser Parties prior to or concurrently with the execution of this Agreement (the "Company Parties Disclosure Schedule"), which Schedule identifies the Section (or, if applicable, subsection) to which such exception relates (provided that any disclosure in the Company Party Parties Disclosure Schedules as of Schedule relating to one section or subsection shall also apply to other sections and subsections to the extent that it is reasonably apparent that such disclosure would also apply to or qualify such other sections and subsections), or (ii) in the Company SEC Documents filed prior to the date hereof, each of which is being relied upon by such Purchaser or Lender, as the case may be, as a material inducement to enter into and perform this Agreement. All of the disclosure schedules referenced below and thereby required of the Company Parties pursuant to this Agreement, which disclosure schedules shall be cross-referenced represent and warrant to the specific sections and subsections of this Agreement and delivered pursuant to Section 4.12, are referred to herein Purchaser Parties as the “Company Party Disclosure Schedules.”follows:
(a) Each Company Party is an entity Organization, Standing and Trust Power of the type identified on Section 3.1(a) of the Company. The Company Party Disclosure Schedules, is duly organized, validly existing as a Maryland real estate investment trust and in good standing under the laws of its state of organization identified on Section 3.1(a) Laws of the Company Party Disclosure Schedules. Each Company Party is in good standing State of Maryland and qualified has the requisite trust power, authority and all licenses, permits and authorizations necessary to do business in each own, lease and operate its properties and other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification, except where the failure to be in good standing could not reasonably be expected to result in a Material Adverse Change. No Company Party has any Subsidiaries other than those identified in Section 3.1(a) of the Company Party Disclosure Schedules assets and there are no Excluded Subsidiaries.
(b) The execution, delivery, and performance by each Company Party of this Agreement, the Indenture, the Registration Rights Agreement, any Notes, and the Ancillary Documents (collectively, the “Equity Documents”) to which it is a party and the consummation of the transactions contemplated hereby and thereby (i) are within such Company Party’s governing powers, (ii) have been duly authorized by all necessary governing action, (iii) do not contravene (A) such Company Party’s Organizational Documents or (B) any material provision of any law or any contractual restriction binding on or affecting such Company Party, and (iv) will not result in or require the creation or imposition of any Lien prohibited by the Loan Agreement. Each Company Party has all requisite power and authority to carry on its business as now conducted being conducted. The Company is duly qualified or licensed to do business and proposed is in good standing in each jurisdiction in which the nature of the business it is conducting, or the ownership, operation or leasing of its properties and other assets or the management of properties for others makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be conducted and to own and leases its property.
(c) No consentso qualified or licensed, orderindividually or in the aggregate, authorization, or approval or other action byhas not had, and no notice to or filing with, any Governmental Authority or any other Person is required for the due execution, delivery, and performance by any Company Party of the Equity Documents to which such Company Party is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) the filing of UCC-1 financing statements and Mortgages (as defined in the Loan Agreement) in the state and county filing offices, (ii) those consents and approvals that have been obtained or made on or prior to the date hereof and that are in full force and effect, (iii) the filing of a Current Report on Form 8-K (a “Form 8-K”) with the SEC, (iv) the requisite stockholder approval of the Stockholder Proposals (as defined herein), (v) the filing of an additional listing application with the Nasdaq Stock Market LLC and (vi) other filings and recordings with respect to the Collateral to be made by, or otherwise delivered to Administrative Agent by the date hereof, for filing or recordation (including, with respect to Intellectual Property, the filing of security agreements with the United States Patent and Trademark Office or the United States Copyright Office (solely to the extent perfection could be achieved by such filings)). The execution, delivery, and performance by each Company Party of the Equity Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby will not violate or result in a default or require any consent or approval under any indenture, agreement, Organizational Document or other instrument biding upon the applicable Company Party or its property, or give rise to a right thereunder to require any payment to be made by such Company Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Change.
(d) Reserved
(i) All financial statements of any Company Party or Subsidiary delivered to Administrative Agent, Representative or any Lender or Purchaser by or on behalf of any Company Party or Subsidiary in connection with or pursuant to this Agreement, the Loan Agreement or any other Ancillary Document or document in connection with the transactions contemplated hereby or thereby, including any pro forma balance sheets of the Company Parties delivered on the date hereof have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial positions and results of operations of the applicable Company Party or Subsidiary covered thereby as of the dates and for the periods indicated therein. All projections delivered from time to time to Administrative Agent, Representative or any Lender or Purchaser, as applicable, have been prepared on the basis of assumptions that the Company believes are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company Parties, and no assurances can be given that such projections will be realized, and are not to be viewed as facts, and that actual results during the period or periods covered by the projections may differ materially from such projections).
(ii) Since December 31, 2013, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred that has not been previously disclosed in the SEC Reports.
(f) All factual information taken as a whole (other than forward looking information, projections, estimates, projections and pro forma financial information) heretofore or contemporaneously furnished by or on behalf of any Company Party in writing to any Representative , Administrative Agent, Lender or Purchaser for purposes of or in connection with the Equity Documents or any transaction contemplated hereby or thereby is, and all other such factual information hereafter furnished by or on behalf of any Company Party in writing to Representative , Administrative Agent, Lender or Purchaser was or shall be, true and accurate in all material respects on the date as of which such information was or is dated or certified and did not or does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not (taken as a whole) misleading at such time in light of the circumstances in which such information was given. All forward looking information, projections, estimates, and pro forma financial information furnished by any Company Party were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished.
(i) There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding against any Company Party before any court, Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change other than as set forth in Section 3.1(g)(i) of the Company Party Disclosure Schedules or which purports to affect the legality, validity, binding effect or enforceability of the Equity Documents. There is no pending or, to the Knowledge of any Company Party, threatened action or proceeding instituted against any Company Party, or any of its Subsidiaries which seeks to adjudicate any Company Party, or any of its Subsidiaries as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property.
(ii) Except as it concerns any environmental, health, or safety matter, which is covered by Section 3.1(m) herein, each Company Party has complied with all Legal Requirements of any Governmental Authority having jurisdiction over the conduct of its respective businesses or the ownership of its respective property, in each case, except as would not reasonably be expected to result in have, a Company Material Adverse ChangeEffect. The Company has heretofore made available to Acquiror complete and correct copies of the Company's Amended and Restated Declaration of Trust, as supplemented as of the date hereof (the "Company Charter"), and the amended and restated bylaws (the "Company Bylaws"). The Company Charter and the Company Bylaws are each currently in full force and effect as of the date hereof. Each jurisdiction in which the Company is qualified or licensed to do business and each assumed name under which it conducts business in any jurisdiction are identified in Section 4.1(a) of the Company Parties Disclosure Schedule.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Kramont Realty Trust)