REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx hereby represents and warrants to the Company as follows:
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx represents and warrants to the Noteholders that, which representations and warranties shall expire and be terminated on the earlier of termination of this Agreement or Xxxxxxx’x payment of the amounts set forth in Section 2.3(b):
(a) On a consolidated and non-consolidated basis, Xxxxxxx is not now insolvent and will not be rendered insolvent by any of the rights, duties, obligations or transactions contemplated by this Agreement (collectively the “Xxxxxxx Contemplated Transactions”). As used in this Agreement, insolvent means the sum of the debts and other provable liabilities of Xxxxxxx exceeds the present fair saleable value of Xxxxxxx’x assets. Xxxxxxx also represents and warrants that Xxxxxxx has adequate capitalization for its currently contemplated business and transactions and that Xxxxxxx has not and will not incur debts that will be beyond the ability of Xxxxxxx to pay as such debts mature.
(b) Immediately after giving effect to the consummation of the Xxxxxxx Contemplated Transactions on a consolidated and non-consolidated basis: (i) Xxxxxxx will be able to pay its liabilities when they become due and payable in the ordinary course of its business; (ii) Xxxxxxx will have adequate capital with which to conduct its present or proposed business; (iii) Xxxxxxx will have assets (calculated at a fair market value) that exceed its liabilities; and (iv) Xxxxxxx will be able to satisfy promptly and in accordance with their terms any pending, threatened or reasonably anticipated (A) litigation, (B) final judgments, and (C) actions for money damages (taking into account the maximum probable amount of any such judgment and any such actions in the earliest reasonable time at which such actions might be rendered), as well as all other obligations of Xxxxxxx. The cash available to Xxxxxxx, after taking into account all other anticipated uses of cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.
(c) Xxxxxxx has sufficient cash on hand or binding enforceable commitments to provide it with, and on the dates specified in Section 2.3 for the making of payments to the Noteholders will have, funds sufficient to satisfy its obligations to pay the Purchase Price Payments. Xxxxxxx has no reason to believe, and has not been provided with any notice (whether written or otherwise), that any of the persons providing any commitments referred to above are unable or are not required or do not intend, for any reason, to ...
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx hereby represents, warrants and acknowledges to ICCC for the benefit of each of the Funds:
X. Xxxxxxx is a corporation duly organized and existing and in good standing under the laws of the Commonwealth of Massachusetts;
X. Xxxxxxx has the requisite power and authority under applicable law, its charter or articles of incorporation and its bylaws to enter into and perform this Agreement; this Agreement has been duly executed and delivered by Xxxxxxx; and this Agreement constitutes a legal, valid and binding obligation of Xxxxxxx, enforceable in accordance with its terms; and
C. The accounts maintained and preserved by Xxxxxxx shall be the property of ICCC for the benefit of each of the Funds and Xxxxxxx will not use any information made available to Xxxxxxx under the terms hereof for any purpose other than complying with its duties and responsibilities hereunder or as specifically authorized by ICCC on behalf of each of the Funds in writing.
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx represents and warrants with respect to himself as follows as of the date hereof:
(a) Xxxxxxx has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed, and delivered by Xxxxxxx, constitutes a valid and binding obligation and agreement of Xxxxxxx, and is enforceable against Xxxxxxx in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors and subject to general equity principles.
(c) The execution, delivery and performance of this Agreement by Xxxxxxx does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to Xxxxxxx, or (ii) result in any material breach or material violation of, or constitute a material default (or an event which with notice or lapse of time or both could become a material default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any agreement, contract, commitment, understanding or arrangement to which Xxxxxxx is a party or by which Xxxxxxx is bound and which is material to Xxxxxxx.
(d) As of immediately prior to the execution of this Agreement, neither Xxxxxxx, nor any Affiliate or Associate of Xxxxxxx, is the beneficial owner of any shares of Common Stock. Upon execution of this Agreement, Xxxxxxx may be deemed to have formed a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with the Shareholder Group with respect to the Common Stock.
(e) In addition, Xxxxxxx consents and agrees to serve as a director of the Company as of the date hereof in accordance with the terms of this Agreement.
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. 31 5.1 Xxxxxxx Organization..........................................................................31 5.2 Subsidiaries..................................................................................31 5.3 Authorization.................................................................................32
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx represents and ----------------------------------------- warrants to Liberty that: this Agreement has been duly executed and delivered by Xxxxxxx and, assuming the due execution and delivery thereof by Liberty, is a valid and binding obligation of Xxxxxxx, enforceable against him in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and by general principles of equity; the execution and delivery of this Agreement and the performance of Xxxxxxx'x obligations hereunder will not conflict with or result in a material breach or violation of (i) any material agreement to which Xxxxxxx is a party or by which he or his property are bound, or (ii) assuming expiration of all applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), without objection to the transactions contemplated hereby by the Department of Justice (the "DOJ") or the Federal Trade Commission (the "FTC"), any applicable law or regulation; except for certain Delaware stockholder suits, there is no action, suit, proceeding or investigation pending or, to the best of Xxxxxxx'x knowledge, threatened against Xxxxxxx, Liberty, Newco, the Company or their respective affiliates relating to the transactions contemplated by this Agreement, including, without limitation, the Acquisition; except for filings under the HSR Act, no consent, approval or authorization of, or any registration, qualification or filing with, any governmental agency or authority or any other person is required in order for Xxxxxxx to execute, deliver and perform his obligations under this Agreement; except as set forth on Schedule II, Xxxxxxx is the record and beneficial owner of the Company Securities listed below his name on Schedule I hereto, such Company Securities have been validly issued, are fully paid and non-assessable, and such Company Securities are free of any liens, claims, charges, security interests, pledges or encumbrances of any kind (other than any of the foregoing created herein or hereby or as a result of applicable state and federal securities laws); and other than as set forth in Schedule I, Xxxxxxx does not beneficially own any Company Securities.
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx represents and warrants as follows:
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx represents and warrants to the Company that (a) Xxxxxxx is a corporation duly organized, validly existing and in good standing under the laws of the State of Wisconsin and has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder, (b) the execution and delivery of this Agreement by Xxxxxxx and the consummation by Xxxxxxx of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Xxxxxxx and no other corporate proceedings on the part of Xxxxxxx are necessary to authorize this Agreement or any of the transactions contemplated hereby, (c) this Agreement has been duly executed and delivered by Xxxxxxx and constitutes a valid and binding obligation of Xxxxxxx, and, assuming this Agreement constitutes a valid and binding obligation of Company, is enforceable against Xxxxxxx in accordance with its terms.
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Except as Previously Disclosed, Xxxxxxx hereby represents and warrants to Southwest as follows:
5.1. The Standard. No representation or warranty of Xxxxxxx contained in ARTICLE 5 shall be deemed untrue or incorrect, and Xxxxxxx shall not be deemed to have breached a representation or warranty, in each case for all purposes hereunder, including the condition set forth in Section 8.3(a), as a consequence or result of the existence or absence of any fact, circumstance, change or event unless such fact, circumstance, change or event, individually or taken together with all other facts, circumstances, changes or events inconsistent with any representation or warranty contained in ARTICLE 5 has had or is reasonably likely to have a Material Adverse Effect on Xxxxxxx (it being understood that for the purpose of determining the accuracy of such representations and warranties, other than the representation in Section 5.7, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded); provided, that the foregoing shall not apply to the representations in Sections 5.2 (first sentence only), 5.3(a), 5.3(b)(i), 5.4(b) and 5.15, which shall be true and correct in all material respects, and the representations and warranties in Sections 5.4(a), 5.4(c) and 5.7, which shall be true and correct in all respects (except for inaccuracies in Sections 5.4(a) and 5.4(c) that are de minimis in amount).
REPRESENTATIONS AND WARRANTIES OF XXXXXXX. 2.1 Xxxxxxx represents and warrants to Capital that:
(a) Xxxxxxx has the full power and authority to enter into this agreement and the entering into of this agreement does not conflict with any applicable laws or or any contract or other commitment to which Xxxxxxx is party;
(b) Xxxxxxx is legally entitled to hold the Claims and all mineral claims and leases therein and all Property Rights held by it and to option out its interest in the Claims, and will remain so entitled until all interests of Xxxxxxx in the Claims have been duly transferred to Capital as contemplated hereby;
(c) Xxxxxxx is, and at the time of each transfer to Capital of mineral claims and leases comprising the Claims will be, the sole and exclusive beneficial owner of the Claims, free and clear of all liens, assignments, mortgages, actions, charges, and claims of any kind held by any person or persons, corporations, or government bodies against the Claims, and no taxes or rental are due in respect of any thereof;
(d) the mineral claims and rights comprising the Claims have been duly and validly located and recorded in the name of Xxxxxxx Xxxx and are in good standing on the date hereof and expire on the dates set out in this agreement;
(e) all permits, licenses, consents and authorities necessary to carry on the drill testing on the Claims have been obtained or will be obtained prior to the drilling being conducted on the Claims;
