Representations or Warranties; Disclaimers. (a) It is the explicit intent of each party hereto that no party to this Agreement or to the Merger Agreement is making any representation or warranty whatsoever, express or implied, in this Agreement, the Merger Agreement, the Tax Sharing Agreement or the Stockholders Agreement or in any other agreement contemplated hereby or thereby, except those representations and warranties expressly set forth in this Agreement. Each of the parties hereto agrees, to the fullest extent permitted by Law, that none of them nor any of their Affiliates, agents or representatives shall have any liability or responsibility whatsoever to any such other party hereto or such other party's Affiliates, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to any such other party or such other party's Affiliates, agents or representatives (or any omissions therefrom), including, without limitation, in respect of the specific representations and warranties set forth in this Agreement and the Merger Agreement and the covenants and agreements set forth in the Merger Agreement, except (i) as and only to the extent expressly set forth in the indemnification provisions of Article V hereof and as otherwise expressly set forth herein (subject to the limitations and restrictions contained herein), and (ii) with respect to breaches of the covenants and agreements set forth in this Agreement. (b) Without limiting the generality of the foregoing, it is understood and agreed (a) that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting in any way as to the value or freedom from encumbrance of, or any other matter concerning, any Spinco Assets, (b) that the Spinco Assets are being transferred "as is, where is" and (c) that, subject to the obligations of the Company set forth in Sections 2.1(b) and 6.2 hereof, Spinco shall bear the risk that any conveyances of the Spinco Assets might be insufficient or that Spinco's or any of the Spinco Company's title to any Retained Assets shall be other than good and marketable and free from encumbrances. Similarly, it is understood and agreed that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting to Spinco or any Spinco Indemnified Party in any way that the obtaining of the consents and approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of any or all applicable agreements or the requirements of all applicable Laws or judgments. (c) Spinco represents and warrants to the Company that (i) except as expressly provided in the Globalstar Bank Guarantee (as amended pursuant to the provisions of Section 2.5 hereof), neither the Company nor any of the Retained Subsidiaries will, after giving effect to the Restructuring, be liable directly or indirectly, as borrower, surety, guarantor, indemnitor or otherwise, with respect to (and that none of the Retained Assets shall be bound by or subject to) any of the Spinco Liabilities or any Spinco Indebtedness, (ii) there are no Intercompany Agreements in effect as of the date hereof, which, either individually or in the aggregate, are materially adverse to (i) the business, properties, operations, prospects, results of operations or condition (financial or otherwise) of the Retained Business or (ii) the ability of the Company or any of the Retained Subsidiaries to perform their respective obligations under this Agreement, the Tax Sharing Agreement or the Stockholders Agreement, (iii) there are no Spinco Assets which have been used within the Retained Business within one year prior to the date hereof, other than those Spinco Assets which are listed on Section 6.2(c) of the Disclosure Schedule, (iv) except as set forth in Section 6.1(c)(iv) of the Disclosure Schedule, neither Spinco nor any Spinco Company shall, immediately after giving effect to the Restructuring and the Distribution, own, hold or lease, in whole or in part, any of the assets, properties, licenses and rights which are reasonably necessary to carry on the Retained Business as presently conducted, and (v) prior to, on or shortly after the Distribution Date, GTL or Globalstar (as the case may be) will issue to the Company the Guarantee Warrants described in the Globalstar Warrant Memorandum and the term sheet set forth on Exhibit A-1 attached hereto, which warrants will be on the terms and conditions described in the Globalstar Warrant Memorandum and shall otherwise be on such terms and conditions as are customary to transactions of a similar nature.
Appears in 3 contracts
Samples: Restructuring, Financing and Distribution Agreement (Loral Corp /Ny/), Restructuring, Financing and Distribution Agreement (Lockheed Martin Corp), Restructuring, Financing and Distribution Agreement (Lockheed Martin Corp)
Representations or Warranties; Disclaimers. (a) It is the explicit intent of each party hereto that no party to this Agreement or to the Merger Agreement is making any representation or warranty whatsoever, express or implied, in this Agreement, the Merger Agreement, the Tax Sharing Agreement or the Stockholders Agreement or in any other agreement contemplated hereby or therebyhereby, except those representations and warranties expressly set forth in this Agreement. Each of the parties hereto agrees, to the fullest extent permitted by Law, that none of them nor any of their Affiliates, agents or representatives shall have any liability or responsibility whatsoever to any such other party hereto or such other party's Affiliates, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to any such other party or such other party's Affiliates, agents or representatives (or any omissions therefrom), including, without limitation, in respect of the specific representations and warranties set forth in this Agreement and the Merger Agreement and the covenants and agreements set forth in the Merger Agreement, except (i) as and only to the extent expressly set forth in the indemnification provisions of Article V hereof and as otherwise expressly set forth herein (subject to the limitations and restrictions contained herein), and (ii) with respect to breaches of the covenants and agreements set forth in this Agreement.
(b) Without limiting the generality of the foregoing, it is understood and agreed (a) that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting in any way as to the value or freedom from encumbrance of, or any other matter concerning, any Spinco A&S Assets, (b) that the Spinco A&S Assets are being transferred "as is, where is" and (c) that, subject to the obligations of the Company set forth in Sections 2.1(b) and Section 6.2 hereof, Spinco A&S shall bear the risk that any conveyances of the Spinco A&S Assets might be insufficient or that Spinco's or any of the Spinco Company's title to any Retained Assets shall be other than good and marketable and free from encumbrancesinsufficient. Similarly, it is understood and agreed that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting to Spinco A&S or any Spinco A&S Indemnified Party in any way that the obtaining of the consents and approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of any or all applicable agreements or the requirements of all applicable Laws or judgments.
(c) Spinco A&S represents and warrants to the Company that (i) except as expressly provided since December 31, 1998, the A&S Business has been conducted in the Globalstar Bank Guarantee ordinary course of business consistent with past practice; (as amended pursuant to the provisions of Section 2.5 hereof), ii) neither the Company nor any of the Retained Subsidiaries will, after giving effect to the RestructuringSplit-Off, be liable directly or indirectly, as borrower, surety, guarantor, indemnitor or otherwise, with respect to (and that none of the Retained Assets shall be bound by or subject to) any of the Spinco Liabilities or any Spinco IndebtednessA&S Liabilities; (iii) except as set forth in Schedule 6.1(c)(iii) of the Disclosure Schedule, (ii) there are no Intercompany Agreements in effect as of the date hereof, which, either individually or in the aggregate, are materially adverse to ; (i) the business, properties, operations, prospects, results of operations or condition (financial or otherwise) of the Retained Business or (ii) the ability of the Company or any of the Retained Subsidiaries to perform their respective obligations under this Agreement, the Tax Sharing Agreement or the Stockholders Agreement, (iiiiv) there are no Spinco A&S Assets which have been used within the Retained Business within one year prior to the date hereofsince December 31, 1998, other than those Spinco A&S Assets which are listed on Section 6.2(cSchedule 6.1(c)(iv) of the Disclosure Schedule; (v) except as set forth in Schedule 6.1(c)(v) of the Disclosure Schedule, (iv) except as set forth in Section 6.1(c)(iv) of the Disclosure Schedule, neither Spinco nor any Spinco Company shall, A&S shall not immediately after giving effect to the Restructuring and the DistributionSplit-Off, own, hold or lease, in whole or in part, any of the assets, properties, licenses and rights which are reasonably necessary to carry on the Retained Business as presently conducted; and (vi) except as set forth in Schedule 6.1(c)(vi) of the Disclosure Schedule or as provided in Section 4.2, since December 31, 1998, no other intercompany transfers, dividends or payments have taken, or will take, place outside the ordinary course of business between A&S, on the one hand, and (v) prior tothe Company or any Retained Subsidiary, on or shortly after the Distribution Date, GTL or Globalstar (as the case may be) will issue to the Company the Guarantee Warrants described in the Globalstar Warrant Memorandum and the term sheet set forth on Exhibit A-1 attached hereto, which warrants will be on the terms and conditions described in the Globalstar Warrant Memorandum and shall otherwise be on such terms and conditions as are customary to transactions of a similar natureother hand.
Appears in 1 contract
Samples: Transition Agreement (Pentair Inc)
Representations or Warranties; Disclaimers. (a) It is the explicit intent of each party hereto that no party to this Agreement or to the Merger Agreement is making any representation or warranty whatsoever, express or implied, in this Agreement, the Merger Agreement, the Tax Sharing Agreement or the Stockholders Agreement or in any other agreement contemplated hereby or thereby, except those representations and warranties expressly set forth in this Agreement. Each of the parties hereto agrees, to the fullest extent permitted by Law, that none of them nor any of their Affiliates, agents or representatives shall have any liability or responsibility whatsoever to any such other party hereto or such other party's Affiliates, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to any such other party or such other party's Affiliates, agents or representatives (or any omissions therefrom), including, without limitation, in respect of the specific representations and warranties set forth in this Agreement and the Merger Agreement and the covenants and agreements set forth in the Merger Agreement, except (i) as and only to the extent expressly set forth in the indemnification provisions of Article V hereof and as otherwise expressly set forth herein (subject to the limitations and restrictions contained herein), and (ii) with respect to breaches of the covenants and agreements set forth in this Agreement.
(b) Without limiting the generality of the foregoing, it is understood and agreed (ai) that neither Parent, the Company Olsten nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, is representing or warranting in any way as to the value or freedom from encumbrance of, or any other matter concerning, any Spinco Transferred OHS Assets, and (bii) that the Spinco Transferred OHS Assets are being transferred "as is, where is" and with all faults (c) thatprovided that the absence of such warranties shall not negate the allocation of liabilities under this Agreement and shall have no effect on any manufacturers, subject sellers or other third party warranties that are intended to the obligations of the Company set forth in Sections 2.1(b) and 6.2 hereof, Spinco shall bear the risk that any conveyances of the Spinco Assets might be insufficient or that Spinco's or any of the Spinco Company's title to any Retained Assets shall be other than good and marketable and free from encumbrancestransferred with such assets). Similarly, it is understood and agreed that neither ParentAdecco, the Company Olsten nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting to Spinco OHS or any Spinco Indemnified Party OHS Indemnitee in any way that the obtaining of the consents and approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of any or all applicable agreements or the requirements of all applicable Laws laws or judgments.
(cb) Spinco OHS represents and warrants to the Company that that:
(i) except as expressly provided OHS is a corporation duly organized, validly existing and in good standing under the Globalstar Bank Guarantee (as amended pursuant to the provisions of Section 2.5 hereof), neither the Company nor any laws of the Retained Subsidiaries willState of Delaware and has all requisite corporate power and authority to own, after giving effect lease and operate its properties and to the Restructuring, be liable directly or indirectly, carry on its business as borrower, surety, guarantor, indemnitor or otherwise, with respect to (and that none of the Retained Assets shall be bound by or subject to) any of the Spinco Liabilities or any Spinco Indebtedness, now being conducted;
(ii) there are no Intercompany OHS has full corporate power and authority to execute this Agreement and the Ancillary Agreements in effect as to which it will be a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the date hereoftransactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of OHS and, whichto the extent required, either by the stockholder of OHS. This Agreement has been duly executed and delivered by OHS and, assuming due authorization, execution and delivery hereof by Olsten, constitutes a valid and binding agreement of OHS, enforceable against OHS in accordance with its terms, except to the extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally or by general equitable principles. Each of the Ancillary Agreements will be duly executed and delivered by OHS on or prior to the Effective Time and, assuming due authorization, execution and delivery thereof by each other party thereto, will constitute a valid and binding agreement of OHS, enforceable against OHS in accordance with its terms, except to the extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally or by general equitable principles;
(iii) The execution and delivery by OHS of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby will not contravene, violate, result in a breach of or constitute a default under (x) any provision of applicable law or of the articles of incorporation or by-laws of OHS or any Health Subsidiary or (y) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to OHS or any Health Subsidiary or any of their properties or assets, except for such contravention, violations, breaches or defaults that, individually or in the aggregate, are would not materially adverse impair OHS's ability to consummate the transactions contemplated hereby or (iz) the businessGovernmental Settlement Agreements;
(iv) No filing or registration with, propertiesor permit, operationsauthorization, prospectsconsent or approval of, results or notification or disclosure to, any Governmental Authority is required by OHS in connection with the execution and delivery of operations this Agreement, the Ancillary Agreements or condition (financial or otherwise) the consummation of the Retained Business transactions contemplated hereby or thereby, except (iiw) in connection with the ability provisions of the Company Securities Act and the Exchange Act, (x) such consents, approvals, orders, permits, authorizations, registrations, declarations and filings as may be required under the Blue Sky laws of various states, (y) consents, authorizations, approvals or notifications listed on Schedule 6 and (z) such consents, approvals, orders, permits, authorizations, registrations, declarations and filings, the failure of which to obtain would not, individually or in the aggregate, materially impair OHS's ability or Olsten's ability to consummate the transactions contemplated hereby;
(v) The OHS Common Stock to be issued pursuant to Section 2.02 has been duly authorized and, when so issued, will be fully paid, validly issued and nonassessable and will not have been issued in violation of any preemptive rights;
(vi) At the Effective Time, neither OHS nor any of the Health Subsidiaries will be a party to any material agreement, arrangement or understanding with Olsten or any of the Retained Subsidiaries to perform their respective obligations under other than this Agreement, the Tax Sharing Ancillary Agreements and any other agreement entered into in connection with the Split-Off as contemplated by this Agreement; and
(vii) Each of the Balance Sheet and the balance sheets attached as Schedule 5 for the years ended January 4, 1999 and December 28, 1997 fairly present in all material respects the combined financial position of the Health Services Business as of their respective dates, in accordance with US GAAP (subject in the case of interim financial statements, to normal year-end adjustments).
(c) In addition to the actions specifically provided for elsewhere in this Agreement and except as otherwise expressly set forth in this Agreement, each of the parties hereto shall act in good faith and use its respective reasonable best efforts to take, or cause to be taken, all actions, and, to execute and deliver, or cause to be executed and delivered, such additional documents and instruments, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable laws and agreements to consummate and make effective the transactions contemplated by this Agreement.
(d) Notwithstanding anything contained herein to the contrary, neither Olsten nor OHS shall, without the prior written consent of Adecco, take any action or inaction in effecting the transactions contemplated hereby if such action or inaction would (i) materially increase the Liabilities of Olsten or the Stockholders AgreementRetained Subsidiaries, (ii) materially impair Olsten's ability to conduct the Retained Businesses, or (iii) there are no Spinco Assets which have been used within materially decrease the value of the Retained Business within one year prior to the date hereof, other than those Spinco Assets which are listed on Section 6.2(c) of the Disclosure Schedule, (iv) except as set forth in Section 6.1(c)(iv) of the Disclosure Schedule, neither Spinco nor any Spinco Company shall, immediately after giving effect to the Restructuring and the Distribution, own, hold or lease, in whole or in part, any of the assets, properties, licenses and rights which are reasonably necessary to carry on the Retained Business as presently conducted, and (v) prior to, on or shortly after the Distribution Date, GTL or Globalstar (as the case may be) will issue to the Company the Guarantee Warrants described in the Globalstar Warrant Memorandum and the term sheet set forth on Exhibit A-1 attached hereto, which warrants will be on the terms and conditions described in the Globalstar Warrant Memorandum and shall otherwise be on such terms and conditions as are customary to transactions of a similar natureAssets.
Appears in 1 contract
Samples: Separation Agreement (Olsten Corp)
Representations or Warranties; Disclaimers. (a) It is the explicit intent of each party hereto that no party to this Agreement or to the Merger Agreement is making any representation or warranty whatsoever, express or implied, in this Agreement, the Merger Agreement, the Tax Sharing Agreement or the Stockholders Agreement or in any other agreement contemplated hereby or therebyhereby, except those representations and warranties expressly set forth in this Agreement. Each of the parties hereto agrees, to the fullest extent permitted by Law, that none of them nor any of their Affiliates, agents or representatives shall have any liability or responsibility whatsoever to any such other party hereto or such other party's Affiliates, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to any such other party or such other party's Affiliates, agents or representatives (or any omissions therefrom), including, without limitation, in respect of the specific representations and warranties set forth in this Agreement and the Merger Agreement and the covenants and agreements set forth in the Merger Agreement, except (i) as and only to the extent expressly set forth in the indemnification provisions of Article V hereof and as otherwise expressly set forth herein (subject to the limitations and restrictions contained herein), and (ii) with respect to breaches of the covenants and agreements set forth in this Agreement.
(b) Without limiting the generality of the foregoing, it is understood and agreed (a) that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting in any way as to the value or freedom from encumbrance of, or any other matter concerning, any Spinco A&S Assets, (b) that the Spinco A&S Assets are being transferred "as is, where is" and (c) that, subject to the obligations of the Company set forth in Sections 2.1(b) and Section 6.2 hereof, Spinco A&S shall bear the risk that any conveyances of the Spinco A&S Assets might be insufficient or that Spinco's or any of the Spinco Company's title to any Retained Assets shall be other than good and marketable and free from encumbrancesinsufficient. Similarly, it is understood and agreed that neither Parent, the Company nor any of the Retained Subsidiaries is, in this Agreement or in any other agreement or document contemplated by this Agreement, representing or warranting to Spinco A&S or any Spinco A&S Indemnified Party in any way that the obtaining of the consents and approvals, the execution and delivery of any amendatory agreements and the making of the filings and applications contemplated by this Agreement shall satisfy the provisions of any or all applicable agreements or the requirements of all applicable Laws or judgments.
(c) Spinco represents and warrants to the Company that (i) except as expressly provided in the Globalstar Bank Guarantee (as amended pursuant to the provisions of Section 2.5 hereof), neither the Company nor any of the Retained Subsidiaries will, after giving effect to the Restructuring, be liable directly or indirectly, as borrower, surety, guarantor, indemnitor or otherwise, with respect to (and that none of the Retained Assets shall be bound by or subject to) any of the Spinco Liabilities or any Spinco Indebtedness, (ii) there are no Intercompany Agreements in effect as of the date hereof, which, either individually or in the aggregate, are materially adverse to (i) the business, properties, operations, prospects, results of operations or condition (financial or otherwise) of the Retained Business or (ii) the ability of the Company or any of the Retained Subsidiaries to perform their respective obligations under this Agreement, the Tax Sharing Agreement or the Stockholders Agreement, (iii) there are no Spinco Assets which have been used within the Retained Business within one year prior to the date hereof, other than those Spinco Assets which are listed on Section 6.2(c) of the Disclosure Schedule, (iv) except as set forth in Section 6.1(c)(iv) of the Disclosure Schedule, neither Spinco nor any Spinco Company shall, immediately after giving effect to the Restructuring and the Distribution, own, hold or lease, in whole or in part, any of the assets, properties, licenses and rights which are reasonably necessary to carry on the Retained Business as presently conducted, and (v) prior to, on or shortly after the Distribution Date, GTL or Globalstar (as the case may be) will issue to the Company the Guarantee Warrants described in the Globalstar Warrant Memorandum and the term sheet set forth on Exhibit A-1 attached hereto, which warrants will be on the terms and conditions described in the Globalstar Warrant Memorandum and shall otherwise be on such terms and conditions as are customary to transactions of a similar nature.the
Appears in 1 contract
Samples: Transition Agreement (Essef Corp)
