REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS. Each Contributor jointly and severally represents and warrants to the Operating Partnership as set forth below (subject in each case to qualification by the disclosures in the disclosure schedule attached hereto as Schedule 3.2 (the “Disclosure Schedule”) and the Prospectus, including, without limitation, any matters for which a reserve has been established as reflected in the pro forma financial statements contained in the Prospectus), which representations and warranties are true and correct as of the date hereof and will (except to the extent relating to a specified date) be true and correct as of the date of Closing. Each Contributor acknowledges and agrees to be bound by the indemnification provisions contained in Section 3.4. Each Contributor hereby agrees to give the Operating Partnership prompt written notice of any information which makes any representation or warranty made by such Contributor hereunder on the date hereof untrue, and in any event no later than five (5) business days of obtaining such information. (a) Organization: Authority: Qualification. Each Contributor if a natural person, has the legal capacity to enter the Agreement, each agreement contemplated hereby and to carry out the transactions contemplated hereby; if not a natural person, such Contributor is duly formed, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of its formation and of each jurisdiction in which it is required to be qualified to do business. Each Contributor has all requisite power and authority to enter this Agreement, each agreement contemplated hereby and to carry out the transactions contemplated hereby, and own, lease or operate its property and to carry on its business as presently conducted and, to the extent required under applicable law, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary. Each Intermediary Owner and Property Owner is duly formed, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of formation and each Intermediary Owner and Property Owner has the requisite power and authority to carry on its business as it is presently conducted and, to the extent required under applicable law, is qualified to do business in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, except where failure to be so qualified would not have a material adverse effect on the assets, business or financial condition of such Intermediary Owner or Property Owner. The general partner, managing member or administrative member of each Intermediary Owner or Property Owner has delivered to the Operating Partnership true and correct copies of each entity’s organizational documents, with all amendments as in effect on the date of this Agreement (collectively, the “Organizational Documents”). The Disclosure Schedule lists each Intermediary Owner and Property Owner, its jurisdiction of formation and each partner, member or other equity owner of such entity as of the date hereof. The Disclosure Schedule lists the percentage interest of the Contributors and any third party holders of interests (direct or indirect) in each Intermediary Owner and in each Property Owner as of the date hereof.
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Samples: Contribution Agreement (Thomas Properties Group Inc), Contribution Agreement (Thomas Properties Group Inc)
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS. Each Contributor jointly Contributor, severally and severally not jointly, hereby represents and warrants solely as to itself, himself or herself, as applicable, to the Operating Partnership other parties as follows:
SECTION 8.1 The number and kind of PNMAC Units and Existing Class B Shares listed opposite such Contributor’s name on Exhibit A hereto represents all of the PNMAC Units and Existing Class B Shares that such Contributor beneficially owns and such Contributor has no existing options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition (i) from PNMAC of any additional PNMAC Units, other than rights expressly set forth in the Current PNMAC LLC Agreement, or (ii) from New Parent of any additional shares of New Parent Common Stock, other than any outstanding Existing Parent Awards under any Existing Parent Plans.
SECTION 8.2 Contributor is the beneficial owner of and has good and valid title to the PNMAC Units and Existing Class B Shares that he, she or it owns as set forth below on Exhibit A hereto free and clear of all liens, claims, encumbrances, trusts, pledges, mortgages, options, and other restrictions of any kind or nature whatsoever (subject in each case to qualification case, other than any liens, claims, encumbrances, trusts, pledges, mortgages, options or restrictions of any kind imposed by the disclosures Current PNMAC LLC Agreement), and has the unrestricted power to sell, assign, transfer, convey and deliver the PNMAC Units to New Parent. The Contributor has not granted any third party any rights in the disclosure schedule attached hereto as Schedule 3.2 (the “Disclosure Schedule”) and the Prospectus, including, without limitation, any matters for which a reserve has been established as reflected in the pro forma financial statements contained in the Prospectus), which representations and warranties are true and correct as of the date hereof and will (except to the extent relating to a specified date) be true and correct as of the date of Closing. Each Contributor acknowledges and agrees to be bound by the indemnification provisions contained in Section 3.4. Each Contributor hereby agrees to give the Operating Partnership prompt written notice of any information which makes any representation PNMAC Units or warranty made by such Contributor hereunder on the date hereof untrue, and in any event no later than five (5) business days of obtaining such informationExisting Class B Shares that it owns.
(a) Organization: Authority: Qualification. Each SECTION 8.3 Contributor if a natural person, has the is an individual or legal entity with full legal capacity to enter into and consummate the Agreement, each agreement transactions contemplated hereby by this Agreement and otherwise to carry out the transactions contemplated hereby; if obligations hereunder. Upon the execution and delivery of this Agreement, the obligations of this Agreement will be valid and binding obligations of such Contributor, enforceable in accordance with its terms.
SECTION 8.4 The execution, delivery and performance of this Agreement by the Contributor does not conflict with or result in the breach of any agreement, instrument, order, judgment, decree, law or governmental regulation to which the Contributor or the PNMAC Units being contributed by Contributor pursuant to the terms hereof or the Existing Class B Shares are subject.
SECTION 8.5 Each Contributor agrees that no Contributor nor the respective controlling persons, officers, directors, partners, agents, or employees of any Contributor shall be liable to any other Contributor for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the acquisition of the Contribution Shares.
SECTION 8.6 If a Contributor is not a natural United States person, such Contributor is duly formed, validly existing and in good standing (hereby represents that he or she has satisfied himself or herself as to the extent applicable) under full observance of the laws of his or her jurisdiction in connection with acquisition of the Contribution Shares or any use of this Agreement, including (a) the legal requirements within his jurisdiction for the acquisition of the Contribution Shares, (b) any foreign exchange restrictions applicable to such acquisition, (c) any governmental or other consents that may need to be obtained, and (d) the income tax and other tax consequences, if any, that may be relevant to the acquisition, holding, redemption, sale, or transfer of the Contribution Shares. Such Contributor’s payment for, and his or her continued beneficial ownership of the Contribution Shares, will not violate any applicable securities or other laws of his or her jurisdiction.
SECTION 8.7 Contributor has had an opportunity to review the federal, state and local tax consequences of the Contribution with his, her or its own tax advisors.
SECTION 8.8 Contributor has not been in breach of any provision under any agreement related to the PNMAC Units or the Existing Class B Shares.
SECTION 8.9 Contributor is not a party to any agreement pursuant to which it is obligated to dispose of the Contribution Shares to be received pursuant to this Agreement, and each Contributor has no present plan or intention to dispose of such Contribution Shares.
SECTION 8.10 Contributor is not under the jurisdiction of its formation and a court in a title 11 or similar case (within the meaning of each jurisdiction in which it is required to be qualified to do business. Each Contributor has all requisite power and authority to enter this Agreement, each agreement contemplated hereby and to carry out the transactions contemplated hereby, and own, lease or operate its property and to carry on its business as presently conducted and, to the extent required under applicable law, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary. Each Intermediary Owner and Property Owner is duly formed, validly existing and in good standing (to the extent applicableSection 368(a)(3)(A) under the laws of the jurisdiction of formation Code) and each Intermediary Owner and Property Owner has the requisite power and authority Contribution Shares will not be used to carry on its business as it is presently conducted and, to satisfy the extent required under applicable law, is qualified to do business in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, except where failure to be so qualified would not have a material adverse effect on the assets, business or financial condition indebtedness of such Intermediary Owner or Property Owner. The general partner, managing member or administrative member of each Intermediary Owner or Property Owner has delivered to the Operating Partnership true and correct copies of each entity’s organizational documents, with all amendments as in effect on the date of this Agreement (collectively, the “Organizational Documents”). The Disclosure Schedule lists each Intermediary Owner and Property Owner, its jurisdiction of formation and each partner, member or other equity owner of such entity as of the date hereof. The Disclosure Schedule lists the percentage interest of the Contributors and any third party holders of interests (direct or indirect) in each Intermediary Owner and in each Property Owner as of the date hereofdebtor.
Appears in 2 contracts
Samples: Contribution Agreement and Plan of Merger (New PennyMac Financial Services, Inc.), Contribution Agreement and Plan of Merger (New PennyMac Financial Services, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS. Each Contributor jointly and severally hereby represents and warrants to the Operating Partnership warrants, severally but not jointly, as set forth below follows (subject in each case to qualification by the disclosures in the disclosure schedule attached hereto as Schedule 3.2 (the “Disclosure Schedule”) and the Prospectus, including, without limitation, any matters for which a reserve has been established as reflected in the pro forma financial statements contained in the Prospectus), which such representations and warranties are true and correct being made as of the date hereof and will (except to the extent relating to a specified date) be true and correct as of the date of Closing. Each Contributor acknowledges and agrees to be bound by the indemnification provisions contained in Section 3.4. Each Contributor hereby agrees to give the Operating Partnership prompt written notice of any information which makes any representation or warranty made by such Contributor hereunder on the date hereof untrue, and in any event no later than five (5) business days of obtaining such information.Closing Date):
(a) Organization: Authority: Qualification. Each Contributor if a natural person, has the legal capacity to enter the Agreement, each agreement contemplated hereby and to carry out the transactions contemplated hereby; if not a natural person, such Such Contributor is an entity that is duly formedorganized, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of its formation and of each jurisdiction in which it is required to be qualified to do business. Each organization.
(b) Such Contributor has all requisite company power and authority to enter execute, deliver and perform its obligations under this Agreement, each agreement contemplated hereby Agreement and to carry out consummate the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered by such Contributor, is not subject to any further consent, waiver, authorization, approval or filing requirements, and ownconstitutes a legal, lease or operate its property valid and to carry on its business as presently conducted and, to the extent required under applicable law, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary. Each Intermediary Owner and Property Owner is duly formed, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of formation and each Intermediary Owner and Property Owner has the requisite power and authority to carry on its business as it is presently conducted and, to the extent required under applicable law, is qualified to do business in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, except where failure to be so qualified would not have a material adverse effect on the assets, business or financial condition binding agreement of such Intermediary Owner or Property Owner. Contributor, enforceable against such Contributor in accordance with its terms.
(d) The general partnerexecution, managing member or administrative member of each Intermediary Owner or Property Owner has delivered to the Operating Partnership true delivery and correct copies of each entity’s organizational documents, with all amendments as in effect on the date performance by such Contributor of this Agreement do not and will not violate or conflict with any provision of its constitutional documents, bylaws or other organizational documents or agreements or any agreement or instrument by which such Contributor is bound or is a party, or any provision of law, order, judgment or decree of any authority, to which such Contributor or its property is subject.
(collectivelye) Such Contributor has, and will have at the Closing, good, valid and transferable title to all the Contributed Shares indicated as owned by such Contributor on Schedule I hereto, free and clear of any Lien.
(f) Except for this Agreement, there are no contracts, arrangements or restrictions to which such Contributor is party, or to which such Contributor is subject, related to the ownership or voting of the Contributed Shares owned by such Contributor as indicated on Schedule I hereto.
(g) The Contributed Company owned by such Contributor owns the vessel set forth opposite such Contributed Company’s name on Schedule II hereto (each a “Organizational DocumentsVessel”), free and clear of any Lien other than Permitted Liens. The Disclosure Schedule lists each Intermediary Owner and Property Owner, its jurisdiction of formation and each partner, member or other equity owner of such entity as As of the date hereof, the class of each Vessel is maintained without overdue conditions or recommendations of class, and each Vessel is free of material damage affecting such Vessel’s class. The Disclosure Schedule lists the percentage interest of the Contributors and any third party holders of interests (direct or indirect) in each Intermediary Owner and in each Property Owner as As of the date hereof, each Vessel’s classification certificate, national certificates and other certificates are valid, unextended and without overdue conditions or recommendations of class or the relevant governmental authority.
(h) As of the date hereof, the charterparty agreements under which the Vessels are employed are valid, binding and in full force and effect and are enforceable by the applicable Contributed Company in accordance with their terms, except as limited by laws affecting the enforcement of creditors’ rights generally or by general equitable principles. As of the date hereof, none of the Contributed Companies has received any written notice of the intention of any charterparty to terminate any such charterparty agreement.
(i) Neither the Contributed Shares nor any Vessels are subject to any prior assignment, conveyance, transfer or participation or agreement to assign, convey, transfer or participate, in whole or in part, other than as provided in the First Priority Mortgages and except as may result pursuant to this Agreement.
(j) The Contributed Company owned by such Contributor has no liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) except for (i) liabilities or obligations reflected or reserved against in the Financial Statements, (ii) liabilities or obligations incurred in the ordinary course of business since the date of the Financial Statements, (iii) contractual obligations under the executory portion of any contract to which such Contributed Company is party or by which it or its assets is bound, (iv) contingent liabilities of which the Contributor does not have knowledge, (v) liabilities and obligations in connection with Permitted Liens and (vi) other liabilities and obligations that are not material in amount or significance in relation to the Financial Statements.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Stalwart Tankers Inc.)
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS. Each Contributor jointly and severally represents and warrants to the Operating Partnership as set forth below (subject in each case to qualification by the disclosures in the disclosure schedule attached hereto as Schedule 3.2 (the “Disclosure Schedule”) and the Prospectus, including, without limitation, any matters for which a reserve has been established as reflected in the pro forma financial statements contained in the Prospectus), which representations and warranties are true and correct as of the date hereof and will (except to the extent relating to a specified date) be true and correct as of the date of Closing. Each Contributor acknowledges and agrees to be bound by the indemnification provisions contained in Section 3.4. Each Contributor hereby agrees to give the Operating Partnership prompt written notice of any information which makes any representation or warranty made by such Contributor hereunder on the date hereof untrue, and in any event no later than five (5) business days of obtaining such information.that:
(a) Organization: Authority: Qualification. Each If such Contributor if a natural person, has the legal capacity to enter the Agreement, each agreement contemplated hereby and to carry out the transactions contemplated hereby; if not is a natural person, such Contributor has the legal capacity and authority to execute, deliver and perform his or her obligations under this Agreement, and no person has any community property rights, by virtue of marriage or otherwise, with respect to such Contributor’s XXXX Shares. If such Contributor is duly formeda person other than a natural person, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of its formation and of each jurisdiction in which it is required to be qualified to do business. Each such Contributor has all requisite power and authority to enter execute and deliver this Agreement and to perform its obligations hereunder; the execution, delivery and performance of the Agreement have been duly and validly authorized; and the Agreement represents a legal, valid and binding obligation of such Contributor, enforceable against such Contributor in accordance with its terms.
(b) Such Contributor owns the XXXX Shares free and clear of any liens, claims or encumbrances, and is not a party to any voting trust, proxy or other agreement with respect to the voting of any of the XXXX Shares.
(c) Each Contributor is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) (i.e., (a) a natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his or her purchase exceeds $1,000,000 (excluding the value of such person’s primary residence), (b) a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those two years and has a reasonable expectation of reaching the same income level in the current year, (c) a corporation, limited liability company or partnership having total assets in excess of $5,000,000 that was not formed for the purpose of investing in the Company pursuant to this Agreement or (d) otherwise meets the requirements for an “accredited investor” under Regulation D promulgated by the Securities and Exchange Commission under the Securities Act).
(d) This Agreement is made with each Contributor in reliance upon each Contributor’s representation to the Company, which by such Contributor’s execution of this Agreement, each agreement contemplated Contributor hereby and confirms, that the Company Shares to carry out be received by each Contributor will be acquired for investment for such Contributor’s own account, not as a nominee or agent, and, except for MMC with respect to the transactions contemplated herebyDistribution, not with a view to the resale or distribution of any part thereof, and ownthat each Contributor has no present intention of selling, lease granting any participation in, or operate its property and to carry on its business as presently conducted and, otherwise distributing the same. Except for MMC with respect to the extent required under applicable lawDistribution, is qualified by executing this Agreement, each Contributor further represents that such Contributor does not presently have any contract, undertaking, agreement or arrangement with any person to do business and is in good standing in each jurisdiction in which the nature of its business sell, transfer or the character of its property make grant participation to such qualification necessary. Each Intermediary Owner and Property Owner is duly formedperson or to any third person, validly existing and in good standing (with respect to the extent applicable) under the laws any of the jurisdiction of formation and each Intermediary Owner and Property Owner has the requisite power and authority to carry on its business as it is presently conducted and, to the extent required under applicable law, is qualified to do business in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, except where failure to be so qualified would not have a material adverse effect on the assets, business or financial condition of such Intermediary Owner or Property Owner. The general partner, managing member or administrative member of each Intermediary Owner or Property Owner has delivered to the Operating Partnership true and correct copies of each entity’s organizational documents, with all amendments as in effect on the date of this Agreement (collectively, the “Organizational Documents”). The Disclosure Schedule lists each Intermediary Owner and Property Owner, its jurisdiction of formation and each partner, member or other equity owner of such entity as of the date hereof. The Disclosure Schedule lists the percentage interest of the Contributors and any third party holders of interests (direct or indirect) in each Intermediary Owner and in each Property Owner as of the date hereofCompany Shares.
Appears in 1 contract