By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that: (a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement. (b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis. (c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties. (d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents. (e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing. (f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller).
Appears in 1 contract
By Purchaser. Purchaser hereby represents and warrants for The Acquired Eligible Receivables are freely assignable by the benefit Purchaser, other than to a paper-based packaging competitor of Seller that:
(a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Sellers. This Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement any of Purchaser’s rights, interests or obligations hereunder may not be assigned or otherwise transferred, in whole or in part, by Purchaser without the prior written consent of Sellers and is enforceable against Purchaser in accordance with its terms. No approval any such purported assignment or transfer without such consent shall be void and of no effect; provided, that no consent of any person Seller, the Sellers Agent or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and Servicer shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and required in the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by event (i) Borrower, of an assignment or transfer to an Affiliate of Purchaser or (ii) of the occurrence of a Notification Event caused by a breach of this Agreement by any assignee Seller, the Sellers Agent or transferee Servicer; provided, further, for the avoidance of Borrowerdoubt, this sentence shall not restrict the Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of the Participation Letter, the Purchaser may at any time, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (iiieach, a “Participant”) any subsequent assignee in all or transferee a portion of Borrower's the Purchaser’s rights and/or obligations under this Agreement; provided, that (x) the Purchaser’s obligations under this Agreement shall remain unchanged, (y) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (z) the Seller, the Sellers Agent and Servicer shall continue to deal solely and directly with the Purchaser in connection with the Purchaser’s rights and obligations under this Agreement. Notwithstanding the Loan foregoing, Purchaser hereby agrees, and Sellers hereby acknowledge, that (x) Purchaser will require each Eligible Participant to whom a participation is sold to fund its pro rata portion of any Additional Funding Amounts payable pursuant to Clause 3.3(b) (it being understood that such pro rata portion may be the Loan Documents.
(epro rata amount required to be funded pursuant to Clause 3.3(b) Closing or an amount in excess of Purchaser's acquisition a base amount of the Loan and Purchaser Amount Balance not participated by the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement Clause 17.9) and that Purchaser will grant each Eligible Participant the right to direct the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group to zero on 3045 days prior written notice to Purchaser and effective on a Monthly Date (and during such 3045 day period such Eligible Obligor Limit will automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice is delivered) and (y) (I) on such Monthly Date of 4855-7613-32454864-7968-1754, v.107 effectiveness, the Eligible Obligor Limit for such Eligible Obligor Group shall automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, be reduced to zero and (II) any such reduction may result in an automatic and contemporaneous reduction of the Commitment pursuant to the definition of “Commitment.” If the Purchaser shall notify the Sellers Agent that an Eligible Participant shall (i) have failed to fund its pro rata portion of an Additional Funding Amount (or has notified the Purchaser that it does not intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such ▇▇▇▇▇▇▇▇ Participant will not comply with its funding obligations, or is the subject of a Bankruptcy) or (ii) have directed the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group, then Sellers Agent may, in its sole discretion, notify the Purchaser that it wishes Purchaser to terminate the participation agreement with such Eligible Participant in accordance with the terms of the related participation agreement, and Purchaser will so terminate such agreement and the Commitment shall be determined to be false or incorrect, or if Purchaser shall fail to perform any reduced by the amount of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller)such Eligible Participant’s maximum participation amount.
Appears in 1 contract
Sources: Agreement for the Purchasing and Servicing of Receivables (Smurfit Westrock PLC)
By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that:
(a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend to the extent permitted by law, the Vendors and hold harmless Seller from each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any and all damageslosses (excluding loss of profits), claims, lossesdamages, expensesliabilities and expenses arising out of or based upon: (i) any information or statement contained in the preliminary prospectus, obligations final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and liabilities (including, without limiting the generality in light of the foregoingcircumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, liabilities investigation or proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Vendors or the underwriter or underwriters); and (iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 9(e)(i) has been furnished to the Purchaser by the Vendors or the underwriter or underwriters expressly for taxes and attorneys' fees suffereduse therein pursuant to subsection 9(d)(i); (B) caused by the Vendors or any underwriter’s failure to deliver to a purchaser of Consideration Shares, directly a copy of the prospectus or indirectly by Seller)any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendors’ obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that:
(a) Purchaser has the right, legal capacity, and authority Subject to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of this Agreement, at the acquisition are Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the result following documents (where the execution or delivery of arms'-length bargaining between the parties.documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, payment of the Purchase Price in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller;
(ii) any assignee or transferee Purchaser shall deposit $3,000,000 of Borrowerthe Purchase Price (the “Inventory Escrow Amount”) in an escrow account to be held, or safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller and the Escrow Agent, in such form as the Parties shall mutually agree (the “Escrow Agreement”);
(iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.Escrow Agreement, duly executed by Purchaser;
(eiv) Closing the Transition Services Agreement, duly executed by Purchaser;
(v) a certificate of the Secretary of State of the state of organization of Purchaser's acquisition , dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;
(vi) a certificate, dated as of the Loan Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Loan Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is not contingent on the occurrence duly and validly authorized and constitutes a binding obligation of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.; and
(fvii) Purchaser agrees that if any a certificate, dated as of the representations and warranties made Closing Date, signed by a Responsible Officer of Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of certifying that the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend Section 6.2(a) and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller)7.2(b) have been satisfied.
Appears in 1 contract
By Purchaser. At the Closing, Purchaser hereby represents shall execute and warrants for deliver to, or cause to be executed and delivered to, the benefit of Seller thatthe following:
(ai) Purchaser has the right, legal capacity, Assignment and authority to execute and deliver this Purchase Assumption Agreement and to consummate ▇▇▇▇ of Sale and the transactions contemplated by this Purchase Escrow Agreement. This Purchase Agreement has been , each duly and validly executed and delivered by Purchaser;
(ii) an assumption of the lease pertaining to the Leased Real Property, constitutes executed by Purchaser;
(iii) a certificate reasonably acceptable to Seller, dated the valid legal and binding agreement Closing Date, executed by an officer of Purchaser, certifying, representing and is enforceable against warranting (i) the adoption of resolutions of the Board of Directors of Purchaser in accordance with its terms. No approval of any person or entity is required for authorizing the execution execution, delivery and performance of this Purchase Agreement by Purchaser or and the consummation of any related agreements, documents and instruments referred to herein and the respective transactions contemplated hereby and thereby, and (ii) a true and complete copy of the Certificate of Incorporation of Purchaser (as filed with the Secretary of State of Delaware) and the Bylaws of Purchaser;
(iv) a certificate reasonably acceptable to Seller, dated the Closing Date, executed by an officer of Purchaser Parent, certifying, representing and warranting (i) the adoption of resolutions of the Board of Directors of Purchaser Parent authorizing the execution, delivery and performance of this Agreement and the related agreements, documents and instruments referred to herein and the respective transactions contemplated by this Purchase Agreement.hereby and thereby, and (ii) a true and complete copy of the Certificate of Incorporation of Purchaser (as filed with the Secretary of State of Delaware) and the Bylaws of Purchaser Parent;
(bv) a certificate reasonably acceptable to Seller, dated the Closing Date, executed by an officer of Purchaser has independently made its own analysis and Purchaser Parent, certifying, representing and warranting that, as of the Loan and Closing the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title Sections 11.1 and interest in and 11.2 have been satisfied;
(vi) a resale certificate with respect to the Loan inventory included in the Purchased Assets, duly executed by Purchaser;
(vii) payment by wire transfer of the Purchase Price less the Escrow Amount to Seller and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.deposit of the Escrow Amount with the Escrow Agent as provided in Section 2.3(b) of this Agreement;
(cviii) The the Employment and Consulting Agreements executed by Purchaser Parent;
(ix) the Stock Purchase Price Agreement executed by Purchaser; and
(x) a favorable opinion of special counsel to Purchaser, in form reasonably satisfactory to counsel to Seller, in connection with this Agreement and the terms and conditions of the acquisition are the result of arms'-length bargaining between the partiestransactions contemplated hereby.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller).
Appears in 1 contract
By Purchaser. (i) if Seller shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be cured prior to the Termination Date or has not been cured within 30 days after the giving of written notice by Purchaser hereby represents and warrants for the benefit of to Seller that:specifying such breach;
(aii) Purchaser has if Seller or any of its directors or officers shall breach Section 6.6;
(A) if Seller breaches its obligations under this Agreement by failing to call or hold the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser stockholders meeting in accordance with Section 6.6, (B) if the Board of Directors of Seller or any committee thereof shall withdraw or modify, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 6.6, that has the effect of withdrawing or modifying, its terms. No approval or recommendation of this Agreement, (C) if the Board of Directors of Seller or any committee thereof shall approve or recommend, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 6.6, that has the effect of approving or recommending, to the stockholders of Seller an Acquisition Proposal, (D) if, after an Acquisition Proposal shall have been made public, the Board of Directors of Seller fails to affirm its recommendation of this Agreement as promptly as practicable (but in any case within 5 Business Days) after any written request from Purchaser or (E) if a tender offer or exchange offer constituting an Acquisition Proposal is commenced, and the Board of Directors of Seller fails to promptly recommend against acceptance of such offer by the stockholders of Seller (including by taking no position with respect to the acceptance of such offer by the stockholders of Seller);
(iv) if any person shall have consummated a tender offer or entity an exchange offer or other transaction constituting an Acquisition Proposal;
(v) if a condition under Section 8.1 or 8.2 to Purchaser's obligations hereunder is required for incapable of being satisfied prior to the execution Termination Date;
(vi) at any time prior to the last day of the Due Diligence Period if it is not satisfied, in its sole discretion, with its due diligence investigation; or
(vii) if the Board of Directors of Purchaser shall not have approved this Purchase Agreement by Purchaser or and the consummation of any of the transactions contemplated by this Purchase AgreementTransaction at the Purchaser Board Meeting.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller).
Appears in 1 contract
By Purchaser. At the Closing, Purchaser hereby represents and warrants for the benefit of Seller thatFine shall deliver or cause to be delivered to Sellers:
(a) Purchaser has The Closing Payment in the right, legal capacity, manner provided in Section 2.1.1 hereof and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required payment for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase AgreementCompany Notes as provided in Section 2.2 hereof.
(b) A separate Note Assignment executed on behalf of Purchaser has independently made its own analysis in favor of each of the Loan and holders of the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basisCompany Notes.
(c) The Purchase Price and the terms and conditions Each of the acquisition are the result Notes executed on behalf of arms'-length bargaining between the partiesPurchaser.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) BorrowerThe Stock Pledge Agreement, (ii) any assignee or transferee executed on behalf of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan DocumentsPurchaser.
(e) Closing of Purchaser's acquisition Each of the Loan and Goldwasser Consulting Agreem▇▇▇ ▇▇▇ ▇▇e Nelson Consulting Agreement, ▇▇ ▇▇ch case executed on behalf of the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financingCompany.
(f) A certificate of the Secretary of Purchaser, dated as of the Closing Date, certifying (I) the incumbency and signatures of the officers of Purchaser; (ii) the bylaws of Purchaser agrees and all amendments thereto as being a true and correct copy thereof and then in full force and effect; and (iii) resolutions of the Board of Directors of Purchaser as being true, correct and complete and then in full force and effect, authorizing the execution and delivery this Agreement, the Notes, the Stock Pledge Agreement, and the agreements and instruments called for hereunder and the consummation of the transactions contemplated hereby, and appointing Fine as Chief Executive Officer of Purchaser.
(g) A certificate of Purchaser, signed by a senior officer of Purchaser, certifying that if any of the representations and warranties of Purchaser made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or herein are true and correct in all material respects as if Purchaser shall fail to perform any made on and as of the obligationsClosing Date (or such other date as may be explicitly stated in any representation or warranty).
(h) A certificate, conditions or agreements set forth dated as of a recent date, of the Secretary of State of the State of Utah as to the good standing of Purchaser in this Purchase Agreement, then the State of Utah.
(i) A copy of the Articles of Incorporation of Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting amendments thereto certified by the generality appropriate governmental office or agency of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller)State of Utah.
Appears in 1 contract
By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that:
(a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and subject to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser applicable Survival Period pursuant to this Purchase Agreement Section 10.1 above, shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless Seller from and against any and all damagesmanner of obligations, suits, claims, actions, damages, charges, liabilities, losses, expenses, obligations and liabilities costs or expenses (including, without limiting limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the generality extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser in this Agreement or any of the foregoingRelated Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for taxes wages, bonuses, unpaid and attorneys' fees sufferedaccrued vacation or sick days, directly severance or indirectly termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by Seller)reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Date.
Appears in 1 contract
By Purchaser. Purchaser hereby represents and warrants for The Acquired Eligible Receivables are freely assignable by the benefit Purchaser, other than to a paper-based packaging competitor of Seller that:
(a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Sellers. This Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement any of Purchaser’s rights, interests or obligations hereunder may not be assigned or otherwise 4864-7968-1754, v.74933-2778-3252, v.4 transferred, in whole or in part, by Purchaser without the prior written consent of Sellers and is enforceable against Purchaser in accordance with its terms. No approval any such purported assignment or transfer without such consent shall be void and of no effect; provided, that no consent of any person Seller, the Sellers Agent or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and Servicer shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and required in the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by event (i) Borrower, of an assignment or transfer to an Affiliate of Purchaser or (ii) of the occurrence and continuance of a Notification Event caused by a breach of this Agreement by any assignee Seller, the Sellers Agent or transferee Servicer; provided, further, for the avoidance of Borrowerdoubt, this sentence shall not restrict the Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of the Participation Letter, the Purchaser may at any time, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (iiieach, a “Participant”) any subsequent assignee in all or transferee a portion of Borrower's the Purchaser’s rights and/or obligations under this Agreement; provided, that (x) the Purchaser’s obligations under this Agreement shall remain unchanged, (y) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (z) the Seller, the Sellers Agent and Servicer shall continue to deal solely and directly with the Purchaser in connection with the Purchaser’s rights and obligations under this Agreement. Notwithstanding the Loan foregoing, Purchaser hereby agrees, and Sellers hereby acknowledge, that (x) Purchaser will require each Eligible Participant to whom a participation is sold to fund its pro rata portion of any Additional Funding Amounts payable pursuant to Clause 3.3(b) (it being understood that such pro rata portion may be the Loan Documents.
(epro rata amount required to be funded pursuant to Clause 3.3(b) Closing or an amount in excess of Purchaser's acquisition a base amount of the Loan and Purchaser Amount Balance not participated by the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement Clause 17.9) and that Purchaser will grant each Eligible Participant the right to direct the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group to zero on 45 days prior written notice to Purchaser and effective on a Monthly Date (and during such 45 day period such Eligible Obligor Limit will automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice is delivered) and (y) (I) on such Monthly Date of effectiveness, the Eligible Obligor Limit for such Eligible Obligor Group shall automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, be reduced to zero and (II) any such reduction may result in an automatic and contemporaneous reduction of the Commitment pursuant to the definition of “Commitment.” If the Purchaser shall notify the Sellers Agent that an Eligible Participant shall (i) have failed to fund its pro rata portion of an Additional Funding Amount (or has notified the Purchaser that it does not intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such Eligible Participant will not comply with its funding obligations, or is the subject of a Bankruptcy) or (ii) have directed the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group, then Sellers Agent may, in its sole discretion, notify the Purchaser that it wishes Purchaser to terminate the participation agreement with such Eligible Participant in accordance with the terms of the related participation agreement, and Purchaser will so terminate such agreement and the Commitment shall be determined to be false or incorrect, or if Purchaser shall fail to perform any reduced by the amount of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality of the foregoing, liabilities for taxes and attorneys' fees suffered, directly or indirectly by Seller)such Eligible Participant’s maximum participation amount.
Appears in 1 contract
Sources: Agreement for the Purchasing and Servicing of Receivables (Smurfit Westrock PLC)
By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that:
(a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend to the extent permitted by law, the Vendor and hold harmless Seller from each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any and all damageslosses (excluding loss of profits), claims, lossesdamages, expensesliabilities and expenses arising out of or based upon: (i) any information or statement contained in the preliminary prospectus, obligations final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and liabilities (including, without limiting the generality in light of the foregoingcircumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, liabilities investigation or proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Vendor or the underwriter or underwriters); and (iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection (e) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for taxes and attorneys' fees suffereduse therein pursuant to subsection (e); (B) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, directly a copy of the prospectus or indirectly by Seller)any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
By Purchaser. Neither this Agreement nor any of Purchaser’s rights, interests or obligations hereunder (including Purchaser’s rights in respect of the Purchased Receivables) may be assigned, delegated or otherwise transferred, in whole or in part, by operation of Law, merger, change of control, or otherwise, by Purchaser hereby represents and warrants for without the benefit prior written consent of Seller that:
(a) Purchaser has the rightsuch consent not to be unreasonably withheld, legal capacitydelayed or conditioned), and authority any such purported assignment, delegation or transfer without such consent shall be void ab initio and of no effect; provided, however, that following the Closing, Purchaser may, upon [***] prior written notice to execute and deliver Seller, but without the prior written consent of Seller, assign this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement all of Purchaser’s rights, interests and obligations hereunder, in whole, to an Affiliate of Purchaser or to a fund that is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement exclusively managed by Purchaser or by its Affiliate (in each case, an “Affiliate Transferee”) if (i) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller, to perform all obligations under, and to be bound by all the consummation of any provisions of, this Agreement (including Section 6.11 and each of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions other covenants set forth in Article VI that are applicable to Purchaser) as if such Affiliate Transferee were the “Purchaser” under this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties.
(d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrowersuch Affiliate Transferee agrees in a writing, or in form and substance reasonably satisfactory to Seller and the Escrow Agent, to perform all obligations under, and to be bound by the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser” under the Escrow Agreement, (iii) any subsequent assignee or transferee such Affiliate Transferee’s creditworthiness (after giving effect to such assignment) is at least as favorable to Seller as that of Borrower's rights Purchaser at the time of such assignment and obligations under the Loan (iv) such Affiliate Transferee represents and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees warrants to Seller that if any each of the representations and warranties made by Purchaser pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend Article V (including those set forth in Section 5.10) are true and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting the generality correct as of the foregoingdate of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s entity type and jurisdiction of organization (but, liabilities for taxes in any event, the first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the Purchased Receivables) and attorneys' fees sufferedwith such language giving effect to such modifications as shall be agreed to by Seller (such agreement of Seller not to be unreasonably withheld, directly delayed or indirectly by Sellerconditioned)).
Appears in 1 contract
Sources: Royalty Purchase Agreement (Enanta Pharmaceuticals Inc)
By Purchaser. At the Closing, Purchaser hereby represents and warrants for shall deliver, or cause to be delivered, the benefit of Seller that:
following: (ai) Purchaser has a certificate, dated the rightClosing Date, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated signed by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, constitutes the valid legal and binding agreement an executive officer of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for certifying as to the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions matters set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Sections 7.03(a) and 7.03(b); (ii) pursuant to instructions set forth in the Funds Flow Memorandum, to each Seller's right, title and interest a payment in and an amount equal to the Loan proportion of such Seller’s Pro Rata Share of the Closing Payment; (iii) pursuant to instructions set forth in the Funds Flow Memorandum, a payment in an amount equal to $3,000,000 (the “Indemnity Escrow Deposit”), to an account (the “Indemnity Escrow Account”) specified by an escrow agent mutually agreed upon between the Bank and Purchaser (the Loan Documents hereunder is and “Escrow Agent”), which Indemnity Escrow Deposit shall be on an "AS IS"held, "WHERE IS" safeguarded and "WITH ALL FAULTS" basis.
(c) The released pursuant to the terms of the Escrow Agreement; notwithstanding anything to the contrary herein, the Purchase Price and allocable to the terms and conditions of Shares held by the acquisition Minority Shareholders will not be subject to adjustment for the Indemnity Escrow Deposit, and, accordingly, Sellers who are the result of arms'-length bargaining between the parties.
not Minority Shareholders shall bear more than their Pro Rata Share (d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by clause (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence definition of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing.
(fPro Rata Share) Purchaser agrees that if any of the representations and warranties made by Purchaser adjustment to the Purchase Price for the Indemnity Escrow Deposit; (iv) pursuant to this Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements instructions set forth in this Purchase Agreementthe Funds Flow Memorandum, then Purchaser agrees a payment in an amount equal to indemnify$2,000,000 (the “Adjustment Escrow Deposit,” and together with the Indemnity Escrow Deposit, defend the “Escrow Deposits”) to an account (the “Adjustment Escrow Account”) specified by the Escrow Agent, which Adjustment Escrow Deposit shall be held, safeguarded and hold harmless Seller from and against any and all damages, claims, losses, expenses, obligations and liabilities (including, without limiting released pursuant to the generality terms of the foregoingEscrow Agreement; (v) a counterpart to the Escrow Agreement; (vi) pursuant to instructions set forth in the Funds Flow Memorandum, liabilities for taxes Purchaser shall pay any unpaid amounts of the Bank Transaction Expenses due and attorneys' fees sufferedowing to any third-party advisors, directly or indirectly such payment to be by Seller)wire transfer of immediately available funds; and (vii) the Cross-Receipt.
Appears in 1 contract
Sources: Stock Purchase Agreement (Newtek Business Services Corp.)