Valid Title, etc. The Mortgagor has good and marketable fee simple title in and to the Fee Premises, along with any other property set forth on Exhibit A. The Mortgagor owns leasehold title to the Leasehold Premises, along with any other property set forth on Exhibit A-1, pursuant the Leasehold Estate described on Exhibit B. The Mortgagor owns good and marketable title to personal property in which a security interest is granted under the Loan Documents; Mortgagor further has a good right to sell and mortgage, grant a security interest in, and assign, the Collateral; the Collateral is free and clear of any Liens other than Permitted Encumbrances; and the Mortgagor will forever warrant and defend the title to the Collateral unto the Mortgagee against the claims of all Persons whomsoever, except those claiming under Permitted Encumbrances. With respect to the Timber Lease, Mortgagor represents and warrants, to the best of its knowledge after diligent inquiry, that (i) the Timber Lease is in full force and effect and has not been modified or amended in any manner whatsoever except as may be set forth on Exhibit B, (ii) there are no defaults under the Timber Lease and no event has occurred which, but for the passage of time, or notice, or both, would constitute a default under the Timber Lease, (iii) all rents, additional rents and other sums due and payable under the Timber Lease have been paid in full, (iv) neither Mortgagor nor the landlord under the Timber Lease has commenced any action or given or received any notice for the purpose of terminating the Timber Lease which has not been cured.
Valid Title, etc. With respect to the Existing Preferred such Preferred Holder signatory hereto beneficially owns (as defined in Rule 13d-3 of the Securities and Exchange Act of 1934) (each a “Share” and collectively, the “Shares”) there are no restrictions on the rights of disposition pertaining thereto, except for any restrictions contemplated herein or arising under applicable securities laws, such Preferred Holder has exclusive power to vote, exclusive power of disposition and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Preferred Holder’s Shares with no limitations, qualifications or restrictions on these rights. Each Preferred Holder represent that neither it nor any of its Affiliates is party to or bound by any agreement with respect to the voting (by proxy or otherwise), sale or other disposition of the Shares (other than this Agreement).
Valid Title, etc. The Board is lawfully seized of an indefeasible estate in fee simple in and to, and has good title to, the Real Property and the Project Equipment; KINPAK holds a valid leasehold estate in the Real Property and the Project Equipment pursuant to the Lease Agreement and has good title to the Additional Project Equipment; the Mortgagors have a good right to sell and mortgage, and grant a security interest in, the Collateral; the Collateral is subject to no liens, encumbrances or security interests other than Permitted Encumbrances; and the Mortgagors will forever warrant and defend the title to the Collateral unto the Bank against the claims of all persons whomsoever, except those claiming under Permitted Encumbrances. It is expressly understood and agreed that, with respect to the Special Funds only, the lien and security interest created by this Mortgage is junior and subordinate to the lien and security interest created by the Indentures.
Valid Title, etc. With respect to the Series P Preferred Stock such Holder beneficially owns (as defined in Rule 13d-3 of the Securities and Exchange Act of 1934 (each a “Share” and collectively, the “Shares”) there are no restrictions on the rights of disposition pertaining thereto, except for any restrictions contemplated herein or arising under applicable securities laws, such Holder has exclusive power to vote, exclusive power of disposition and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Holder’s Shares with no limitations, qualifications or restrictions on these rights. Each Holder represents that neither the Holder nor any of the Holder’s affiliates is party to or bound by any agreement with respect to the voting (by proxy or otherwise), sale or other disposition of the Shares (other than this Agreement).
Valid Title, etc. The Board is lawfully seized of an indefeasible estate in fee simple in and to, and good title to, the Project Site, subject to the Lease Agreement; the Company is lawfully seized of a valid leasehold estate, under the terms of the Lease Agreement, in the Project Site; the Mortgagors have a good right to sell and mortgage, and grant a security interest in, the Collateral; the Collateral is subject to no liens, encumbrances or security interests other than Permitted Encumbrances; and the Mortgagors will forever warrant and defend the title to the Collateral unto the Credit Obligor against the claims of all persons whomsoever, except those claiming under Permitted Encumbrances. It is expressly understood and agreed that, with respect to the Special Funds, the lien and security interest created by this Mortgage is junior and subordinate to the lien and security interest created by the Indenture.
Valid Title, etc. With respect to the Existing Preferred and Common Stock such Holder beneficially owns (as defined in Rule 13d-3 of the Securities and Exchange Act of 1934 (each a “Share” and collectively, the “Shares”) there are no restrictions on the rights of disposition pertaining thereto, except for any restrictions contemplated herein or arising under applicable securities laws, such Holder has exclusive power to vote, exclusive power of disposition and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Holder’s Shares with no limitations, qualifications or restrictions on these rights. Each Holder represents that neither the Holder nor any of the Holder’s affiliates is party to or bound by any agreement with respect to the voting (by proxy or otherwise), sale or other disposition of the Shares (other than this Agreement).
Valid Title, etc. With respect to the Shares beneficially owned by the Existing Shareholders, there are no restrictions on the rights of disposition pertaining thereto, except for any restrictions contemplated herein, restrictions arising under that certain Make Good Escrow Agreement, dated May 14, 2007, with certain investors (the “Make Good Escrow Agreement”) or arising under applicable securities laws, such Existing Shareholder has exclusive power to vote, exclusive power of disposition and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Existing Shareholder’s Shares with no limitations, qualifications or restrictions on these rights. Each Existing Shareholder represents that neither it nor any of its Affiliates is party to or bound by any agreement with respect to the voting (by proxy or otherwise), sale or other disposition of their Shares (other than this Agreement and the Make Good Escrow Agreement).
Valid Title, etc. The Stockholders are the sole, true, and lawful stockholders of record and beneficial owners (as defined in Rule 13d-3 of the Exchange Act) of the Shares with no restrictions on the rights of disposition pertaining thereto, except for any restrictions contemplated herein or arising under applicable securities laws. The Stockholders do not own any options to purchase or rights to subscribe for or otherwise acquire any securities of the Company, except for the right to receive shares of Voting Common Stock upon conversion of shares of Class B Common Stock. The Stockholders have exclusive power to issue instructions with respect to the matters set forth in Article I of this Agreement, exclusive power to vote, exclusive power of disposition, exclusive power of conversion with respect to the Shares, and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares beneficially owned by the Stockholders with no limitations, qualifications or restrictions on these rights, subject to applicable securities laws, the HSR Act and the terms of this Agreement.
Valid Title, etc. Seller is the sole owner, beneficially and of record, of the Applicable Purchased Shares, and has good, valid and marketable title to all of the Applicable Purchased Shares, free and clear of any and all Encumbrances and at the Closing, shall transfer to Buyer the Applicable Purchased Shares and all legal and beneficial right, title and interest in and to the Applicable Purchased Shares free and clear of any and all Encumbrances. Seller has the sole right to dispose or direct the disposition of the Applicable Purchased Shares. For purpose of this Section 2(d), the term “Encumbrances” shall mean any security interest, claim, pledge, lien, charge, voting agreement, mortgage, conditional sale agreement, title retention agreement, option, adverse claim of ownership or use, any restriction on ownership, use, voting or transfer, or any other encumbrance of any kind, character or description whatsoever.
Valid Title, etc. Laurus is the true and beneficial owner (as defined in Rule 13d-3 of the Securities and Exchange Act of 1934) of the Shares with no restrictions on the rights of disposition pertaining thereto, except for the restrictions arising under applicable securities laws and the restrictions contemplated in (i) this Agreement, (ii) that certain Stock Purchase Agreement between the Company and Laurus dated as of even date herewith, (iii) that certain Lock-Up Agreement between the Company and Laurus dated as of even date herewith, and (iv) that certain Registration Rights Agreement between the Company and Laurus dated as of even date herewith. Laurus has exclusive power to vote, exclusive power of disposition and exclusive power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares with no limitations, qualifications or restrictions on these rights. Laurus represents that neither it nor any of its affiliates is party to or bound by any agreement with respect to the voting (by proxy or otherwise) of the Shares (other than this Agreement).
