Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IX, for itself, represents, warrants and covenants to the Company as follows: (a) It (i) is duly organized and validly existing under the laws of its jurisdiction of organization or incorporation, and (ii) has full power and authority to execute, deliver and perform its obligations under this Agreement. (b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entity, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. (c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein. (d) It is a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the Investment Company Act. (e) Taberna V is the sole legal and beneficial owner of the Participating Trust I Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust I Securities free and clear of any Lien. (f) Taberna VII is the sole legal and beneficial owner of the Participating Trust II Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust II Securities free and clear of any Lien. (g) Taberna VIII and Taberna IX are the legal and beneficial owners of the Participating Trust III Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III Securities free and clear of any Lien. (h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents. (i) The outstanding principal amount of its respective Participating Securities is the face amount as set forth in such Participating Securities. (j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act. (k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws. (l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities. (m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities. (n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein for which the Company could be responsible. (o) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Securities, the Original Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXentity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and in which it is organized with all requisite (iii) has full power and authority to execute, deliver and perform its obligations under this AgreementOperative Documents to which it is a party, to make the representations and warranties specified herein and therein and to consummate the transactions contemplated in the Operative Documents.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entityTaberna, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It is a “Qualified PurchaserHolder” as such term is defined in Section 2(a)(51) of the Investment Company Act.
(e) Taberna V is I, Taberna II and Taberna III are the sole legal and beneficial owner owners of the Participating Trust I Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust I Preferred Securities free and clear of any LienLien created by such Taberna entities.
(f) Taberna VII is III, Taberna IV and Taberna V are the sole legal and beneficial owner owners of the Participating Trust II Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust II Preferred Securities free and clear of any LienLien created by such Taberna entities.
(g) Taberna VIII IV, Taberna VII and Taberna IX VIII are the legal and beneficial owners of the Participating Trust III Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III Preferred Securities free and clear of any LienLien created by such Taberna entities.
(h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents.
(i) The outstanding principal amount of its respective Participating Securities is the face amount as set forth in such Participating Securities.
(j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws.
(l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein for which the Company could be responsible.
(o) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Securities, the Original Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXEntity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and in which it is organized with all requisite (iii) has full power and authority to execute, deliver and perform its obligations under this Agreementthe Operative Documents to which it is a party, to make the representations and warranties specified herein and therein and to consummate the transactions contemplated in the Operative Documents.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entityEntity, enforceable against such Taberna entity Entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity Entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It is a “Qualified PurchaserHolder” as such term is defined in Section 2(a)(51) of the Investment Company Act.
(e) Taberna V is V, Taberna VII and Taberna VIII are the sole legal and beneficial owner owners of the Participating Trust I Securities Original Holdings and the related Taberna Transferred Rights and shall deliver the Participating Trust I Securities free and clear of any Lien.
(f) Taberna VII is the sole legal and beneficial owner of the Participating Trust II Securities Original Holdings and the related Taberna Transferred Rights and shall deliver the Participating Trust II Securities free and clear of any LienLien created by such Taberna Entities.
(gf) Taberna VIII and Taberna IX are the legal and beneficial owners of the Participating Trust III Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III Securities free and clear of any LienIntentionally Omitted.
(h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents.
(i) The outstanding principal amount of its respective Participating Securities is the face amount as set forth in such Participating Securities.
(j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws.
(l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein for which the Company could be responsible.
(o) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Securities, the Original Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXentity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and in which it is organized with all requisite (iii) has full power and authority to execute, deliver and perform its obligations under this Agreement, to make the representations and warranties specified herein and to consummate the transactions contemplated herein.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a partythis Agreement, will be a legal, valid and binding obligation of such Taberna entityTaberna, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It Taberna I is a “Qualified Purchaser” as such term is defined in Section 2(a)(51) the legal and beneficial owner of Note 1 and the Investment Company Actrelated Taberna Transferred Rights and shall deliver Note 1 and the related Taberna Transferred Rights free and clear of any Lien.
(e) Taberna V is the sole legal and beneficial owner of the Participating Trust I Securities Note 2 and the related Taberna Transferred Rights and shall deliver Note 2 and the Participating Trust I Securities related Taberna Transferred Rights free and clear of any Lien.
(f) Taberna VII is the sole legal and beneficial owner of the Participating Trust II Securities Note 3 and the related Taberna Transferred Rights and shall deliver Note 3 and the Participating Trust II Securities related Taberna Transferred Rights free and clear of any Lien.
(g) Taberna VIII and Taberna IX are is the legal and beneficial owners owner of the Participating Trust III Securities Note 4 and the related Taberna Transferred Rights and shall deliver Note 4 and the Participating Trust III Securities related Taberna Transferred Rights free and clear of any Lien.
(h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documentsthis Agreement.
(i) The outstanding principal amount of its respective Participating Securities Notes is the face amount as set forth in such Participating SecuritiesNotes.
(j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws.
(l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein in this Agreement for which the Company could be responsible.
(ok) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliatestheir affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents this Agreement and the other documents delivered by the Company in connection therewith. It acknowledges that none of the Company or the Existing Indenture Trustee or any of their affiliates has given it any investment advice, credit information or opinion on whether the Exchange is prudent. It further acknowledges that neither the Company nor any of the Company’s affiliates have made any representation or warranty as to the value of the Bonds (or the underlying collateral for the Bonds) or as to the collectability or marketability of the Bonds.
(l) None of the exchange of the Bonds and Cash Payment for the Notes, the discharge of the Notes nor the execution and delivery of and compliance with this Agreement by it will conflict with or constitute a violation or breach of (x) its charter or bylaws or similar organizational documents or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entities.
(m) It is not (i) in violation of its respective charter or by-laws or similar organizational documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets is subject, except, in the case of clause (ii), where such violation or default would not, singly or in the aggregate, have a Material Adverse Effect.
(n) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity, other than those that have been made or obtained, is necessary or required for the performance by it of its obligations hereunder.
(o) The information provided by it pursuant to this Agreement does not, as of the date hereof, and will not as of the Closing Date, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Except as expressly stated in this Agreement, Taberna make no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating SecuritiesNotes, the Original Existing Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXentity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and (ii) has full in which it is organized with all requisite power and authority to execute, deliver and perform its obligations under this AgreementOperative Documents to which it is a party, to make the representations and warranties specified herein and therein and to consummate the transactions contemplated in the Operative Documents.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entity, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It is a “Qualified PurchaserHolder” as such term is defined in Section 2(a)(51) of the Investment Company Act.
(e) Taberna V I is the sole legal and beneficial owner of the Participating Trust I #3 Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust I #3 Preferred Securities free and clear of any Lien.Lien created by Taberna I.
(f) Taberna VII II is the sole legal and beneficial owner of the Participating Trust II #1 Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust II #1 Preferred Securities free and clear of any LienLien created by Taberna II.
(g) Taberna VIII and Taberna IX are the legal and beneficial owners of the Participating Trust III Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III Securities free and clear of any Lien.
(h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents.
(i) The outstanding principal amount of its respective Participating Securities is the face amount as set forth in such Participating Securities.
(j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws.
(l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein for which the Company could be responsible.
(o) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Securities, the Original Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXentity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and in which it is organized with all requisite (iii) has full power and authority to execute, deliver and perform its obligations under this Agreementthe Operative Documents to which it is a party, to make the representations and warranties specified herein and therein and to consummate the transactions contemplated in the Operative Documents.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entity, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It is a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the Investment Company Act.
(e) Taberna V is and Taberna VI are the sole legal and beneficial owner owners of the Participating Trust I Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust I Preferred Securities free and clear of any Lien.
(f) Taberna VII is VIII, and Taberna IX are the sole legal and beneficial owner owners of the Participating Trust II Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust II Preferred Securities free and clear of any Lien.
(g) Taberna VIII and Taberna IX are the legal and beneficial owners of the Participating Trust III Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III Securities free and clear of any LienIntentionally Omitted.
(h) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents.
(i) The outstanding principal amount of its respective Participating Securities is the face amount as set forth in such Participating Securities.
(j) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(k) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities or Taberna Transferred Rights in violation of any applicable securities laws.
(l) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(m) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New Indenture, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(n) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein for which the Company could be responsible.
(o) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Securities, the Original Indentures, or any other matter.
Appears in 1 contract
Representations and Warranties of Taberna. Each of Taberna V, Taberna VII, Taberna VIII and Taberna IXentity, for itself, representsrepresents and warrants to, warrants and covenants to agrees with, the Company as follows:
(a) It (i) is a company duly organized and formed, validly existing and in good standing under the laws of its the jurisdiction of organization or incorporation, and (ii) has full in which it is organized with all requisite power and authority to execute, deliver and perform its obligations under this AgreementOperative Documents to which it is a party, to make the representations and warranties specified herein and therein and to consummate the transactions contemplated in the Operative Documents.
(b) This Agreement and the consummation of the transactions contemplated herein has been duly authorized by it and, on the Closing Date, will have been duly executed and delivered by it and, assuming due authorization, execution and delivery by the Company and the New Indenture Trustee of the Operative Documents to which each is a party, will be a legal, valid and binding obligation of such Taberna entityTaberna, enforceable against such Taberna entity in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
(c) No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any Governmental Entity or any other Person, other than those that have been made or obtained, is necessary or required for the performance by such Taberna entity of its obligations under this Agreement or to consummate the transactions contemplated herein.
(d) It is a “Qualified PurchaserHolder” as such term is defined in Section 2(a)(51) of the Investment Company Act.
(e) Taberna V I is the sole legal and beneficial owner of the Participating Trust I Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust I Preferred Securities free and clear of any LienLien created by such Taberna entities.
(f) Taberna VII II is the sole legal and beneficial owner of the Participating Trust II Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust II Preferred Securities free and clear of any LienLien created by such Taberna entities.
(g) Taberna VIII V is the legal and beneficial owner of the Taberna V Holding and the related Taberna Transferred Rights and shall deliver the Taberna V Holding free and clear of any Lien created by such Taberna entities.
(h) Taberna III, Taberna IV and Taberna IX VIII are the legal and beneficial owners of the Participating Trust III V Preferred Securities and the related Taberna Transferred Rights and shall deliver the Participating Trust III V Preferred Securities free and clear of any LienLien created by such Taberna entities.
(hi) Taberna VII and Taberna VIII are the legal and beneficial owners of the Taberna VII Holding and the Taberna VIII Holding, respectively, and the related Taberna Transferred Rights and shall deliver the Taberna VII Holding and the Taberna VIII Holding free and clear of any Lien created by such Taberna entities.
(j) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to its knowledge, threatened against or affecting it, except for such actions, suits or proceedings that, if adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents.
(ik) The outstanding principal amount of its respective Participating Securities Original Preferred Securities, Original Security IV and Original Security VI is the face amount as set forth in such Participating Original Preferred Securities, such Original Security IV and such Original Security VI.
(jl) It is aware that the New Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act.
(km) It is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act. Without characterizing the Participating Securities Original Preferred Securities, Original Security IV, Original Security VI or the Taberna Transferred Rights as a “security” within the meaning of the applicable securities laws, it has not made any offers to sell, or solicitations of any offers to buy, all or any portion of the Participating Securities Original Preferred Securities, Original Security IV, Original Security VI or Taberna Transferred Rights in violation of any applicable securities laws.
(ln) Neither it nor any of its Affiliates, nor any person acting on its or its Affiliate’s behalf has engaged, or will engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the New Securities.
(mo) It understands and acknowledges that (i) no public market exists for any of the New Securities and that it is unlikely that a public market will ever exist for the New Securities, (ii) such Holder is purchasing acquiring the New Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption therefrom or in a transaction not subject thereto, and it agrees to the legends and transfer restrictions applicable to the New Securities contained in the New IndentureIndentures, and (iii) it has had the opportunity to ask questions of, and receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the New Securities.
(np) It has not engaged any broker, finder or other entity acting under its authority that is entitled to any broker’s commission or other fee in connection with this Agreement and the consummation of transactions contemplated herein in this Agreement and the New Indentures for which the Company could be responsible.
(oq) It (i) is a sophisticated entity with respect to the Exchange, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and without reliance upon the Company or any of its Affiliatestheir affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon the Company’s express representations, warranties, covenants and agreements in the Operative Documents and the other documents delivered by the Company in connection therewith. Except as expressly stated in this Agreement, Taberna make no Taberna entity makes any representations or warranties, express or implied, with respect to the Exchange, the Taberna Transferred Rights, the Participating Original Preferred Securities, Original Security IV, Original Security VI, the Original Existing Indentures, or any other matter.
Appears in 1 contract
