Common use of REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS Clause in Contracts

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ------------------------------------------------- connection with each issuance of New Securities to any Investor pursuant to this Article VII, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor shall consist solely of such representations and warranties relating to (i) such Investor's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor in a similar transaction but no Investor shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor shall be several and not joint and the representations and warranties of the Investor and of the Company (unless, in the case of the Company, otherwise required by the New Securities Purchasers) shall terminate upon the earlier of (i) the termination of any representation or warranty made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor to purchase the full number of New Securities which such Investor is entitled to purchase under this Article VII shall not be subject to any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying Investors, as the case may be, shall be the right of the Company to issue to the New Securities Purchaser and the other Investors, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.01, additional New Securities equal in kind ------------ and number or other relevant amount to the New Securities which such Investor failed to purchase at the closing, in which event the Majority Investors may elect to postpone the closing for five Business Days. Unless the Company and any Investor otherwise agree, the closing of any issuance of New Securities to any Investor pursuant to this Article VII shall take place at the principal ----------- executive offices of the Company at 11:00 A.M., local time, on the later of (i) the thirtieth day following the expiration of the period of fifteen Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved and (ii) the fifteenth Business Day following the expiration of all applicable waiting periods, if any, under the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be necessary or desirable in connection with the acquisition of the New Securities to be issued to the Investor. The Company shall execute such documents and instruments as may be necessary or reasonably requested to effectuate the issuance of New Securities to any Investor.

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ----------- ------------------------------------------------- connection with each issuance of New Securities to any Investor pursuant to this Article VII, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor shall consist solely of such representations and warranties relating to (i) such Investor's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor in a similar transaction but no Investor shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor shall be several and not joint and the representations and warranties of the Investor and of the Company (unless, in the case of the Company, otherwise required by the New Securities Purchasers) and shall terminate upon the earlier of (i) the termination of any representation or warranty made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor to purchase the full number of New Securities which such Investor is entitled to purchase under this Article VII shall not be subject to ----------- any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying Investors, as the case may be, shall be the right of the Company to issue to the New Securities Purchaser and the other Investors, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.017.1, additional New Securities equal in kind ------------ and number or other ----------- relevant amount to the New Securities which such Investor failed to purchase at the closing, in which event the Majority Investors may elect to postpone the closing for five Business Days. Unless the Company and any Investor otherwise agree, the closing of any issuance of New Securities to any Investor pursuant to this Article VII shall take place at the principal ----------- executive offices of the ----------- Company at 11:00 A.M., local time, on the later of (i) the thirtieth day following the expiration of the period of fifteen Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved and (ii) the fifteenth Business Day following the expiration of all applicable waiting periods, if any, under the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be necessary or desirable in connection with the acquisition of the New Securities to be issued to the Investor. The Company shall execute such documents and instruments as may be necessary or reasonably requested to effectuate the issuance of New Securities to any Investor.

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ------------------------------------------------- connection with each issuance of New Securities addition to any Investor pursuant to this Article VII, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor shall consist solely of such representations and warranties relating to (i) such Investor's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor in a similar transaction but no Investor shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor shall be several and not joint and the representations and warranties of Debtors set forth in the Investor Loan Documents (which representations and warranties are hereby incorporated herein by reference), each of the Company Debtors hereby represents, warrants and covenants to the Secured Party as follows: (unlessa) Debtor has, and will continue to have (or, in the case of after- acquired Pledged Collateral, at the Companytime Debtor acquires rights in such Pledged Collateral, otherwise required will have), title to the Pledged Collateral, free and clear of all Liens. (b) The limited liability company interests constituting the Pledged Collateral have been duly authorized and validly issued to the Debtor, are fully paid and nonassessable, have no outstanding assessments, and constitute all of the issued and outstanding limited liability company interests of the issuer thereof owned by Debtor. (c) The security interests in the New Securities PurchasersPledged Collateral granted hereunder are valid, perfected and of first priority. (d) shall terminate There are no restrictions upon the earlier transfer of the Pledged Collateral and Debtor has the power and authority and right to transfer the Pledged Collateral free of any encumbrances and without obtaining the consent of any other Person except to the extent that a transfer upon the exercise of Secured Party's rights and remedies under this Agreement and the other Loan Documents would result in or constitute an assignment of any license relating to a health care facility or a change of control with respect to the ownership of a health care facility which is subject to the prior approval of health care regulatory authorities issuing such license or regulating such health care facility. It is acknowledged that a transfer of the Pledged Collateral by Secured Party following foreclosure may require compliance with federal and state securities laws. (e) Debtor has all necessary power to execute, deliver and perform this Agreement and all necessary action to authorize the execution, delivery and performance of this Agreement has been properly taken. (f) There are no actions, suits, or proceedings pending or, to Debtor's best knowledge after due inquiry, threatened against or affecting Debtor with respect to the Pledged Collateral, at law or in equity or before or by any commissions, board, bureau, agency, department or instrumentality, and Debtor is not in default with respect to any judgment, writ, injunction, decree, rule or regulation which would adversely affect Debtor's performance hereunder. (g) This Agreement has been duly executed and delivered and constitutes the valid and legally binding obligation of Debtor, enforceable in accordance with its terms, except to the extent that (i) enforceability of this Agreement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the termination enforceability of any representation creditors' rights generally or warranty made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor to purchase the full number of New Securities which such Investor is entitled to purchase under this Article VII shall not be subject to any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying Investors, as the case may be, shall be limiting the right of the Company to issue to the New Securities Purchaser and the other Investors, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.01, additional New Securities equal in kind ------------ and number specific performance or other relevant amount to the New Securities which such Investor failed to purchase at the closing, in which event the Majority Investors may elect to postpone the closing for five Business Days. Unless the Company and any Investor otherwise agree, the closing of any issuance of New Securities to any Investor pursuant to this Article VII shall take place at the principal ----------- executive offices of the Company at 11:00 A.M., local time, on the later of (i) the thirtieth day following the expiration of the period of fifteen Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved by general equitable principles; and (ii) the fifteenth Business Day following exercise by Secured Party of its rights and remedies in respect of the expiration Pledged Collateral which would result in or constitute any assignment of all applicable waiting periodsany license relating to a health care facility or any change of control with respect to the ownership of a health care facility is subject to the prior approval of health care regulatory authorities issuing such license or regulating such health care facility. (h) Neither the execution and delivery by the Debtor of this Agreement, if any, under nor the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be necessary or desirable in connection compliance with the acquisition terms and provisions hereof, will violate any provision of the New Securities Articles of Incorporation or Bylaws of the Debtor or any Law or conflict with or result in a breach of any of the terms, conditions or provisions of any judgment, order, injunction, decree or ruling of any court or arbitration tribunal or any governmental authority to which Debtor is subject or any provision of any material agreement, understanding or arrangement to which Debtor is a party or by which Debtor is bound. (i) The Debtor's principal place of business and chief executive office is as set forth on the signature page hereto. (j) No certificate has been or, during the term hereof shall be issued issued, to evidence the Investor. The Company shall execute Pledged Collateral, and no limited liability company interest which is Pledged Collateral constitutes a "certificated security" (as such documents and instruments as may be necessary or reasonably requested to effectuate term is defined in Section 8-102 of the issuance of New Securities to any InvestorCode).

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ------------------------------------------------- connection with each issuance of New Securities to any Investor pursuant to this Article VIIII, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor shall consist solely of such representations and warranties relating to (i) such Investor's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor in a similar transaction but no Investor shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor shall be several and not joint and the representations and warranties of the Investor and of the Company (unless, in the case of the Company, otherwise required by the New Securities Purchasers) and shall terminate upon the earlier of (i) the termination of any representation or warranty made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor to purchase the full number of New Securities which such Investor is entitled to purchase under this Article VII II shall not be subject to any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying Investors, as the case may be, shall be the right of the Company to issue to the New Securities Purchaser and the other Investors, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.012.1, additional New Securities equal in kind ------------ and number or other relevant amount to the New Securities which such Investor failed to purchase at the closing, in which event the Majority Investors may elect to postpone the closing for five (5) Business Days. Unless the Company and any Investor otherwise agree, the closing of any issuance of New Securities to any Investor pursuant to this Article VII II shall take place at the principal ----------- executive offices of the Company at 11:00 A.M., local time, on the later of (i) the thirtieth (30th) day following the expiration of the period of fifteen (15) Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved and (ii) the fifteenth (15th) Business Day following the expiration of all applicable waiting periods, if any, under the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be necessary or desirable in connection with the acquisition of the New Securities to be issued to the Investor. The Company shall execute such documents and instruments as may be necessary or reasonably requested to effectuate the issuance of New Securities to any Investor.

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ------------------------------------------------- connection with each issuance of New Securities to any Investor pursuant to this Article VII, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor shall consist solely of such representations and warranties relating to (i) such Investor's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor in a similar transaction but no Investor shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor shall be several and not joint and the representations and warranties of the Investor and of the Company (unless, in the case of the Company, otherwise required by the New Securities Purchasers) shall terminate upon the earlier of (i) the termination of any representation or warranty made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor to purchase the full number of New Securities which such Investor is entitled to purchase under this Article VII shall not be subject to any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying Investors, as the case may be, shall be the right of the Company to issue to the New Securities Purchaser and the other Investors, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.01, additional New Securities equal in kind ------------ and number or other relevant amount to the New Securities which such Investor failed to purchase at the closing, in which event the Majority Investors may elect to postpone the closing for five Business Days. Unless the Company and any Investor otherwise agree, the closing of any issuance of New Securities to any Investor pursuant to this Article VII shall take place at the principal ----------- executive offices of the Company at 11:00 A.M., local time, on the later of (i) the thirtieth day following the expiration of the period of fifteen Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved and (ii) the fifteenth Business Day following the expiration of all applicable waiting periods, if any, under the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be necessary or desirable in connection with the acquisition of the New Securities to be issued to the Investor. The Company shall execute such documents and instruments as may be necessary or reasonably requested to effectuate the issuance of New Securities to any Investor.

REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS. In ------------------------------------------------- connection with each issuance of New Securities to any Investor Senior Holder pursuant to this Article VIISection 4, the Company shall, in the event the Company is making ----------- representations, warranties and/or covenants to the New Securities Purchaser, make to each Investor Senior Holder such representations, warranties, and covenants as are customarily made by issuers in similar instances (but which in no event shall be less favorable to the Investors Senior Holders than those contemplated by the Preissuance Notice or otherwise made to or for the benefit of any New Securities Purchaser) and each Investor Senior Holder shall be separately and independently entitled to rely on such representations and warranties, to the benefit of such covenants and to exercise all available rights and remedies in the event of any breach or violation of any such representations, warranties and covenants. Any representations and warranties made by an Investor a Senior Holder shall consist solely of such representations and warranties relating to (i) such InvestorSenior Holder's authority to consummate the purchase of the New Securities from the Company and (ii) other similar representations and warranties as are customarily given by similarly situated purchasers of securities similar to those being purchased by an Investor a Senior Holder in a similar transaction transaction, but no Investor Senior Holder shall be required to give any such representation or warranty which the New Securities Purchaser does not give. The representations, warranties, covenants and agreements of each Investor Senior Holder shall be several and not joint and the representations and warranties of the Investor and of the Company shall (unless, in the case of the Company, otherwise required by the New Securities Purchasers) shall terminate upon the earlier of (i) the termination of any representation or warranty the corresponding representations and warranties made by the New Securities Purchaser or by the Company and (ii) one year after closing. The right of each Investor Senior Holder to purchase the full number of New Securities which such Investor Senior Holder is entitled to purchase under this Article VII Section 4 shall not be subject to any conditions whatsoever, other ----------- than the accuracy of the representations made by such Investor, the payment of the purchase price therefor determined as provided herein, and the consummation of the transaction between the Company and the New Securities Purchaser. If any Investor Senior Holder shall fail for any reason to purchase any New Securities which it has elected to purchase, the sole right, remedy and recourse of the Company, the New Securities Purchaser, and the complying InvestorsSenior Holders, as the case may be, shall be the right of the Company to issue to the New Securities Purchaser and the other InvestorsSenior Holders, pro rata based on their respective participations in the transaction as determined pursuant to Section 7.014.1, additional New Securities equal in kind ------------ and number or other relevant amount to the New Securities which such Investor Senior Holder failed to purchase at the closing, in which event the Majority Investors Senior Holders may elect to postpone the closing for five Business Days. Unless the Company and any Investor Senior Holder otherwise agree, the closing of any issuance of New Securities to any Investor Senior Holder pursuant to this Article VII Section 4 shall take place at the principal ----------- executive offices of the Company at 11:00 A.M., local time, on the later of (i) the thirtieth day tenth Business Day following the expiration of the period of fifteen Business Days after the later of (A) the date of the relevant Preissuance Notice was given (except if there is a relevant Subsequent Notice, in which case the date of such Subsequent Notice) and (B) the date all disputes as to the valuations have been resolved and (ii) the fifteenth Business Day following the expiration of all applicable waiting periods, if any, under the HSR Act and the receipt of all consents, approvals and authorizations from governmental authorities or other Persons which the Majority Investors believe to be that are necessary or desirable in connection with the acquisition of the New Securities to be issued to the InvestorSenior Holder. The Company shall execute such documents and instruments as may be necessary or reasonably requested to effectuate the issuance of New Securities to any InvestorSenior Holder.