Common use of Representations and Warranties of Xethanol Clause in Contracts

Representations and Warranties of Xethanol. Xethanol represents and warrants to to Holdings and H2Diesel both on the date hereof and on the date of the Closing as follows: (a) Xethanol has the requisite power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement; (b) The execution of this Agreement by Xethanol does not, and the performance by Xethanol of its obligations hereunder will not, constitute a violation of, conflict with or result in a default under any contract, commitment, agreement, understanding, arrangement or restriction of any kind to which Xethanol is a party or by which Xethanol is bound or any judgment, decree or order applicable to Xethanol; (c) To the best of its knowledge, neither the execution and delivery of this Agreement nor the performance by Xethanol of its obligations hereunder will violate any provision of law applicable to Xethanol or require any consent or approval of, or filing with or notice to any public body or authority under any provision of law applicable to Xethanol other than notices or filings pursuant to the federal securities laws; and (d) Xethanol is the sole record and beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the Shares, has good and marketable title to all of the Shares, and there exist no liens, claims, options, proxies, voting agreements, charges, security interests, or encumbrances of whatever nature (“Liens”) affecting such Shares. Upon transfer of the Shares to Holdings by Xethanol, Holdings will have good and marketable title to the Shares free and clear of all Liens. Other than the Shares and the Retained Shares, Xethanol and its subsidiaries or affiliates do not beneficially own any other securities of Holdings or H2Diesel and do not have any outstanding option, warrant or other right to acquire, directly or indirectly, any securities of Holdings or H2Diesel which are or may by their terms become entitled to vote or any securities which are convertible or exchangeable into or exercisable for any securities of Holdings or H2Diesel which are or may by their terms become entitled to vote, and Xethanol is not subject to any offer, contract, arrangement, understanding or relationship (whether or not legally enforceable) which allows or obligates Xethanol to vote, dispose of or acquire any securities of Holdings or H2Diesel.