Common use of REPRESENTATIONS AND WARRANTIES OF NEWCO Clause in Contracts

REPRESENTATIONS AND WARRANTIES OF NEWCO. Newco hereby represents and warrants to the Stockholder and the Funds that Newco is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by Newco and constitutes a valid and binding obligation of Newco enforceable in accordance with its terms. Except for the filings required under the HSR Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other person is necessary for the execution of this Agreement by Newco and the consummation by Newco of the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement by Newco, the consummation of the transactions contemplated hereby nor the compliance with the terms hereof by Newco will conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under any provision of, the certificate of incorporation, by-laws or analogous documents of Newco, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Newco or to Newco's property or assets. If the Option is exercised, the Subject Securities will be acquired for investment for Newco's own account, not as a nominee or agent and not with a view to the distribution of any part thereof. Newco has no present intention of selling, granting any participation in or otherwise distributing the same nor does Newco have any contract, undertaking, agreement or arrangement with any person with respect to any of the Subject Securities. Newco further understands that the Subject Securities may not be sold, transferred or otherwise disposed of without registration under the Securities Act or pursuant to an exemption therefrom.

REPRESENTATIONS AND WARRANTIES OF NEWCO. Newco hereby represents and warrants to the Principal Stockholder and the Funds that Newco is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and as follows: it has all requisite corporate power and authority to enter into execute this Agreement and the Merger Agreement and to consummate the transactions contemplated herebyhereby and thereby. This Agreement has been duly authorized, executed The execution and delivered delivery by Newco and constitutes a valid and binding obligation of Newco enforceable in accordance with its terms. Except for the filings required under the HSR Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other person is necessary for the execution of this Agreement by Newco and the consummation by Newco of the transactions contemplated hereby Merger Agreement and (ii) none of the execution and delivery of this Agreement by Newco, the consummation of the transactions contemplated hereby nor and thereby have been duly authorized by all necessary action on the part of Newco. Newco has duly executed and delivered this Agreement and the Merger Agreement and, assuming that this Agreement constitutes the legal, valid and binding obligation of the Principal Stockholder and that the Merger Agreement constitutes the legal, valid and binding obligation of the Company, each of this Agreement and the Merger Agreement constitutes the legal, valid and binding obligation of Newco, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good faith and fair dealing. The execution and delivery by Newco of this Agreement and the Merger Agreement do not, and the consummation of the transactions contemplated hereby and thereby and compliance with the terms hereof by Newco and thereof will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time time, or both) under any provision ofof any agreement to which Newco is a party or, subject to the certificate of incorporation, by-laws or analogous documents of Newcofilings and other matters referred to in the next sentence, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation provision of any law applicable to Newco or the properties or assets of Newco, except for any conflict, violation or default which, individually or in the aggregate, would not have a material adverse effect on the ability of Parent or Newco to Newco's property perform its obligations under this Agreement or assetsthe Merger Agreement. If the Option No consent of, or registration, declaration or filing with, any Governmental Entity is exercised, the Subject Securities will required to be acquired for investment for Newco's own account, not as a nominee obtained or agent and not with a view to the distribution of any part thereof. Newco has no present intention of selling, granting any participation in made by or otherwise distributing the same nor does Newco have any contract, undertaking, agreement or arrangement with any person with respect to any Newco in connection with the execution and delivery of this Agreement and the Merger Agreement or the consummation of the Subject Securities. transactions contemplated hereby and thereby, other than as specified in Section 4.3(b) of the Merger Agreement or except for any consent, registration, declaration or filing the failure of which to obtain or make, individually or in the aggregate, would not have a material adverse effect on the ability of Newco further understands that to perform its obligations under this Agreement or the Subject Securities may not be sold, transferred or otherwise disposed of without registration under the Securities Act or pursuant to an exemption therefromMerger Agreement.

REPRESENTATIONS AND WARRANTIES OF NEWCO. Newco hereby represents and warrants to the Stockholder and the Funds Individual that Newco is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its incorporation Delaware and has all requisite the necessary corporate power and authority to enter into execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by and on behalf of Newco and, assuming due authorization, execution and delivery by the Stockholder and the Individual, constitutes a legal, valid and binding obligation of Newco enforceable in accordance with its terms. Except for the filings required under the HSR Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other person is necessary for the execution of this Agreement by and on behalf of Newco and the consummation by Newco of the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement by Newco, the consummation of the transactions contemplated hereby nor the compliance with the terms hereof by Newco will conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under any provision of, the certificate of incorporation, incorporation or by-laws or analogous documents of Newco, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Newco or to Newco's property or assets. If the Option (as defined herein) is exercised, the Subject Securities Shares will be acquired for investment for Newco's own account, not as a nominee or agent and not with a view to the distribution of any part thereof. Newco has no present intention of selling, granting any participation in or otherwise distributing the same nor does Newco have any contract, undertaking, agreement or arrangement with any person with respect to any of the Subject SecuritiesShares. Newco further understands that the Subject Securities Shares may not be sold, transferred or otherwise disposed of without registration under the Securities Act or pursuant to an exemption therefrom.

REPRESENTATIONS AND WARRANTIES OF NEWCO. Newco hereby represents and warrants to the Stockholder Seven and the Funds that Tracinda that: (a) Newco is a corporation newly-formed corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction State of its incorporation Delaware, and has all requisite full power and authority to enter into execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This performance of Newco's obligations hereunder have been duly authorized by all necessary action (corporate or other) on the part of Newco; (b) this Agreement has been duly authorized, executed and delivered by Newco and, assuming the due execution and constitutes delivery thereof by Seven and Tracinda, is a valid and binding obligation of Newco Newco, enforceable in accordance with its terms. Except for , except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the filings required rights of creditors generally and by general principles of equity; (c) Newco has had no previous business activities and has no liabilities beyond those incurred under the HSR ActEngagement Letter (as defined below) and this Agreement; (d) the authorized capital stock of Newco consists solely of 10,000,000 shares of Common Stock and 1,000,000 shares of Preferred Stock, (i) none of which are outstanding at the date hereof and, except as provided herein and in the Term Sheets, Newco does not and, as of the Closing Date will not, have any obligations to issue any of its capital stock, no filing withoptions, warrants or other obligations to issue capital stock of Newco are outstanding and Newco does not have any obligation to issue any such option, warrant or other security, and there are no permitoutstanding subscription, authorization, consent voting or approval of, other similar agreements with respect to the issuance of any Governmental Entity or any other person is necessary for the execution capital stock of this Agreement by Newco and the consummation by Newco of the transactions contemplated hereby and Newco; (iie) none of the execution and delivery of this Agreement by and the performance of Newco's obligations hereunder will not (i) require the consent, approval or authorization of, or any registration, qualification or filing with, any governmental agency or authority or any other person or (ii) conflict with or result in a material breach or violation of (A) any material agreement to which Newco is a party or (B) assuming expiration of all applicable waiting periods under the consummation of HSR Act without objection to the transactions contemplated hereby nor by the compliance with DOJ or the terms hereof by Newco will conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under any provision of, the certificate of incorporation, by-laws or analogous documents of NewcoFTC, any trust agreementapplicable law or regulation; and (f) there is no litigation, loan or credit agreement, note, bond, mortgage, indenture, lease governmental or other agreementproceeding, instrumentinvestigation or controversy pending or, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Newco or to Newco's property or assets. If the Option is exercisedknowledge, the Subject Securities will be acquired for investment for Newco's own account, not as a nominee or agent and not with a view threatened against Newco relating to the distribution of any part thereof. Newco has no present intention of selling, granting any participation in or otherwise distributing the same nor does Newco have any contract, undertaking, agreement or arrangement with any person with respect to any of the Subject Securities. Newco further understands that the Subject Securities may not be sold, transferred or otherwise disposed of without registration under the Securities Act or pursuant to an exemption therefromtransactions contemplated by this Agreement.

REPRESENTATIONS AND WARRANTIES OF NEWCO. Newco hereby represents and warrants to the each Stockholder and the Funds that as follows: Newco is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to enter into execute and deliver this Agreement and Agreement, to consummate the transactions contemplated hereby. This by this Agreement has been duly authorized, executed and delivered by Newco and constitutes a valid and binding obligation of Newco enforceable in accordance to comply with its terms. Except for the filings required under the HSR Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other person is necessary for the execution terms of this Agreement by Newco and the consummation by Newco of the transactions contemplated hereby and (ii) none of the Agreement. The execution and delivery of this Agreement by Newco, the consummation by Newco of the transactions contemplated hereby nor by this Agreement and the compliance by Newco with the terms hereof of this Agreement have been duly authorized by all necessary corporate action on the part of Newco and no other corporate proceedings on the part of Newco are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Newco and, assuming due execution by each Stockholder, constitutes a valid and binding obligation of Newco, enforceable against Newco in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to the enforcement of creditors’ rights generally and by general principles of equity. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and compliance by Newco with the provisions of this Agreement do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time time, or both) under under, or give rise to a right of, or result in termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of Newco under, or give rise to any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of, of (i) the certificate Certificate of incorporation, byIncorporation or By-laws or analogous documents of Newco, (ii) any trust agreementContract to which Newco is a party or bound by or to which any of the properties or assets of Newco is bound by or subject or (iii) subject to the governmental filings and other matters referred to in the following sentence, loan any Law or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, orderin each case, notice, decree, statute, law, ordinance, rule or regulation applicable to Newco or its properties or assets other than, in the case of clauses (ii) and (iii), conflicts, violations, breaches, defaults, rights, losses, Liens or entitlements that individually or in the aggregate are not reasonably likely to Newco's property (x) impair in any material respect the ability of Newco to perform its obligations under this Agreement or assets. If the Option is exercised(y) prevent or materially impede or delay, the Subject Securities will be acquired for investment for Newco's own account, not as a nominee or agent and not with a view to the distribution consummation of any part thereofof the transactions contemplated by this Agreement. Newco has no present intention of sellingNo consent, granting approval, order or authorization of, or registration, declaration or filing with, any participation in Governmental Authority is required by or otherwise distributing the same nor does Newco have any contract, undertaking, agreement or arrangement with any person with respect to any Newco in connection with the execution and delivery of this Agreement by Newco or the consummation by Newco of the Subject Securities. Newco further understands that transactions contemplated hereby, except for (1) filings under any applicable competition, merger control, antitrust or similar law or regulation and (2) filings with the Subject Securities may not be sold, transferred SEC of such reports or otherwise disposed of without registration other furnished or filed materials under the Securities Exchange Act or pursuant to an exemption therefromas may be required in connection with this Agreement and the transactions contemplated hereby.