Representations and Warranties of the Company Contract Clauses (3,414)

Representations and Warranties of the Company. This Warrant has been entered into by the Registered Holder in reliance upon the following representations and covenants of the Company as of the Date of Issuance: (a) Authorization. The Warrant has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific perfor...mance, injunctive relief or other equitable remedies. (b) Valid Issuance. The Warrant Stock is duly authorized and reserved for issuance, and when issued and delivered in accordance with the terms of this Warrant will be duly and validly issued, fully paid and nonassessable. (c) No Conflict. The execution and delivery of this Warrant do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, breach or default (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit, under, any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any order, decree, statute, law, ordinance, rule, listing requirement or regulation applicable to the Company, its properties or assets, which conflict, violation, default or right would have a material adverse effect on the business, properties, prospects, financial condition or operations of the Company. View More

Representations and Warranties of the Company. To induce the Required Holders to enter into this Agreement, and to consent to the Amendments, the Company represents and warrants that: 3.1. Organization; Power and Authority. Each Obligor is a corporation, partnership or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation, partnership or limited liability company and is in good standing in each jurisdiction in which su...ch qualification is required by law, except where the failure to be licensed or qualified would not reasonably be expected to have a Material Adverse Effect. Each Obligor has the necessary corporate, partnership or limited liability company power and authority to execute and deliver this Agreement and to perform the provisions hereof. 3 3.2. Authorization, etc. This Agreement has been duly authorized by all necessary corporate, partnership or limited liability company action on the part of the Obligors, and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legal, valid and binding obligation of the Obligors, enforceable in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 3.3. No Defaults. No Default or Event of Default has occurred and is continuing, either before or after giving effect to the Amendments. 3.4. Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required to be obtained by the Company or the Guarantors in connection with the execution, delivery or performance by the Company or the Guarantors of this Agreement. 3.5. No Amendment Fees. Other than fees paid in connection with the refinancing of the revolving credit facility under, and the execution of, the Second Amended and Restated Credit Agreement (as defined below), no fee or other consideration has been paid, is payable or will be paid, directly or indirectly, by the Company to any Person party to the Bank Credit Agreement, the 2006 Note Purchase Agreement or the NYL Note Facility (as defined below) (or any agent for any of the foregoing), as an inducement to such Person's execution and delivery of this Agreement, any of the Other Amendments or any related amendment to any other loan agreement, note purchase agreement, indenture or other agreement evidencing any other Indebtedness of the Company. 3.6. Effect of Amendments. The Shelf Agreement as hereby amended shall continue in full force and effect. View More

Representations and Warranties of the Company. The Company represents, warrants and certifies that:(a) the execution, delivery and performance by the Company of this Amendment have been duly authorized by all necessary corporate action and that this Amendment is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors' rights generally and general equitable pri...nciples;(b) at the time of and immediately after giving effect to this Amendment, each of the representations and warranties contained in the Credit Agreement (treating this Amendment as a Loan Document for purposes thereof) are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except, in each case, to 4 Exhibit 10.10 the extent any such representation or warranty (i) is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects on and as of such earlier date and (ii) is already qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects; and(c) at the time of and immediately after giving effect to this Amendment, no Event of Default or, to the Company's knowledge, no Unmatured Event of Default has occurred and is continuing.3. Amendment Effective Date. This Amendment shall become effective upon the date (the "Amendment Effective Date") upon which all of the following conditions have been satisfied or waived:(a) the execution and delivery of this Amendment by the Company, the Administrative Agent and the Lenders; (b) receipt by each of the New Lenders of: i.a written opinion of Company's counsel (or a reliance letter in respect of any such written opinion of Company's counsel delivered on the Closing Date), addressed to the New Lenders, in form and substance reasonably acceptable to the Administrative Agent and such New Lenders; and(i)a Note, if so requested. (c) Company shall have paid to the Administrative Agent (i) the First Facility Increase Fee as set forth in the Agent Fee Letter dated as of the Closing Date (hereunder, the "Agent Fee Letter"), and (ii) all other fees due and owing under any Loan Document.4. New Lender Joinder. The parties hereto acknowledge and agree that upon the Amendment Effective Date, (a) each New Lender shall (i) be a party to the Credit Agreement and the other Loan Documents to which Lenders are parties and (ii) have the rights and obligations of a Lender under the Credit Agreement and other Loan Documents, (b) each Lender shall have the Revolving Commitment shown on Annex A of the Credit Agreement (as amended by this Amendment), and (c) the execution and delivery of this Amendment shall not constitute a novation of any Debt or other Obligations owing to Lenders or Administrative Agent under the Credit Agreement.5. Reference to and Effect Upon the Loan Documents. (a) Except as specifically amended hereby, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. (b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any Loan Document, nor constitute a waiver of any provision 5 Exhibit 10.10 of the Credit Agreement or any Loan Document, except as specifically set forth herein. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby. This Amendment shall be deemed a Loan Document under the Credit Agreement.6. Costs and Expenses. The Company hereby affirms its obligation under Section 15.5 of the Credit Agreement to reimburse the Administrative Agent for all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent (including Attorney Costs) in connection with the preparation, negotiation, execution and delivery of this Amendment, the other Loan Documents and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith.7. GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. View More

Representations and Warranties of the Company. (a) The Company represents and warrants to each Second Closing Purchaser that the representations and warranties contained in Section 2 of the Purchase Agreement (except for Section 2.6) are true, correct and complete as of the date hereof and the date of the Second Closing, as if made on the date hereof or the date of the Second Closing, as applicable (except in such cases where such representations and warranties are expressly made as of a specified date, in which case the Company represents a...nd warrants that they are true, correct and complete as of such specified date), with any references to "Effective Date" deemed to mean the date hereof or the date of the Second Closing, as applicable. For purposes of such representations and warranties (other than those in Sections 2.1, 2.2, 2.3, and 2.4 of the Purchase Agreement), the term "Company" shall include any Subsidiaries of the Company, unless otherwise noted in the Purchase Agreement. (b) The Company represents and warrants to each Second Closing Purchaser that the following representations and warranties are true, correct and complete as of the date hereof and the date of the Second Closing: (i) The Company has delivered to each Second Closing Purchaser its audited financial statements (including balance sheet, income statement and statement of cash flows) for the fiscal year ended December 31, 2020, and its unaudited financial statements (including balance sheet, income statement and statement of cash flows) for the fiscal quarters ended March 31, 2021 and June 30, 2021 (collectively, the "Financial Statements"). The Financial Statements fairly present in all material respects the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustment (none of which would be material). Since April 1, 2021, the Company has not suffered any Material Adverse Effect and no event has occurred, and no circumstance exists, that could reasonably be expected to result in a Material Adverse Effect. The Company has no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise except those which are adequately reflected or reserved against in the most recent financial statements other than (A) those which are adequately reflected or reserved against in the most recent Financial Statements, (B) liabilities incurred in the ordinary course of business subsequent to April 1, 2021; (C) obligations under contracts and commitments incurred in the ordinary course of business (other than as a result of a breach or default of the Company thereunder); and (D) liabilities and obligations of a type or nature not required under the U.S. generally accepted accounting principles to be reflected in the Financial Statements, which, in all such cases, individually and in the aggregate would not have a Material Adverse Effect. 2 3. Representations and Warranties of the Purchasers. Each Second Closing Purchaser, severally and not jointly, represents and warrants to the Company (with respect to itself only and not any other Second Closing Purchaser) that the representations and warranties contained in Section 3 of the Purchase Agreement are true, correct and complete as of the date hereof and the date of the Second Closing, as if made on the date hereof or the date of the Second Closing, as applicable (except in such cases where such representations and warranties are expressly made as of a specified date, in which case the Second Closing Purchaser represents and warrants that they are true and complete as of such specified date), with any references to "Effective Date" deemed to mean the date hereof or the date of the Second Closing, as applicable. View More

Representations and Warranties of the Company. The Company hereby warrants and represents to the Bank, and, each request to issue Commercial Paper Notes shall constitute the Company's continuing warranty and representation, as follows: (a) This Agreement is, and all Commercial Paper Notes delivered to the Bank pursuant to this Agreement will be, duly authorized, executed and delivered by the Company. The Bank's appointment to act for the Company hereunder is duly authorized by the Company. (b) The issuance and delivery of the Commercial Pape...r Notes will not violate any state or federal law and the Commercial Paper Notes do not require registration under the Securities Act of 1933, as amended. (c) This Agreement constitutes, and the Commercial Paper Notes, when completed, countersigned, and delivered pursuant hereto, will constitute, the Company's legal, valid and binding obligations enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity. (d) The Company is a corporation duly organized and validly existing under the laws of Delaware and no liquidation, dissolution, bankruptcy, windup or similar proceedings have been instituted with respect to the Company. (e) The Company has, and at all relevant times has had, all necessary power and authority to execute, deliver and perform this Agreement and to issue the Commercial Paper Notes. (f) The Company has taken all actions which are required for the authorization of the issuance of the Commercial Paper Notes, and for the authorization, execution, delivery and performance of this Agreement, and such actions do not require the approval or consent of any holder or trustee of any indebtedness or obligations of the Company. (g) The issuance of Commercial Paper Notes by the Company (i) does not and will not contravene any provision of any governmental law, regulation or rule applicable to the Company, and (ii) does not and will not conflict with, breach or contravene the provisions of any contract or other instrument binding upon the Company. (h) Each instruction given to the Bank in accordance with Section 5 hereof shall constitute a representation and warranty by the Company that the issuance and delivery of such Commercial Paper Note(s) have been duly and validly authorized by the Company 9. Reliance on Instructions. Except as otherwise set forth herein, the Bank shall incur no liability to the Company in acting hereunder upon telephonic or other instructions contemplated hereby which the Bank reasonably believed in good faith to have been given by an Authorized Representative or a Dealer Representative, as the case may be. In the event a discrepancy exists with respect to such instructions, the telephonic instructions as understood by the Bank will be deemed the controlling and proper instructions, unless such instructions are required by this Agreement to be in writing. View More

Representations and Warranties of the Company. The Company represents and warrants to Gray that now and as of the Closing: 2.1 Good Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada. 2.2 Subsidiaries. The Company does not own, directly or indirectly, any capital stock, equity or interest in any corporation, firm, partnership, joint venture, or other entity. 2.3 Capitalization. Approximately 6,810,322 shares of common stock, 2,280,000 shares of Series A Prefer...red Stock, 2,811,800 shares of Series B Preferred Stock, and 1,000 shares of Series C Preferred Stock are outstanding as of September 30, 2021. The Company has not granted registration rights to any person. 2.4 Litigation. To the Company's knowledge, there is no claim, dispute, action, suit, proceeding or investigation pending or threatened against the Company, challenging the validity or propriety of the transactions contemplated by this Agreement, at law or in equity or admiralty or before any federal, state, local, foreign or other governmental authority, board, agency, commission or instrumentality. View More

Representations and Warranties of the Company. As a material inducement to the Purchaser to enter into this Agreement and to acquire the Shares, the Company represents and warrants that the following statements are true and correct in all material respects, except as expressly qualified or modified herein. 3.1 Validity of Transactions. This Agreement, and each document executed and delivered by the Company in connection with the transactions contemplated by this Agreement, have been duly authorized, executed and delivered by the Company and ...is each the valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency reorganization and moratorium laws and other laws affecting enforcement of creditor's rights generally and by general principles of equity. 3.2 Valid Issuance of Shares. The Shares that are being sold to the Purchaser hereunder are duly and validly issued, fully paid and nonassessable and free of restrictions on transfer, other than restrictions on transfer under this Agreement and under applicable federal and state securities laws, and will be free of all other liens and adverse claims. 3.3 Securities Law Compliance. Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 4 of this Agreement, the offer, sale and delivery of the Shares will constitute an exempted transaction under the Securities Act of 1933, as amended and now in effect ("Securities Act"), and registration of the Shares under the Securities Act is not required. View More

Representations and Warranties of the Company. The Company hereby represents and warrants to the Participant that the Company is a limited liability company, duly formed and in good standing under the laws of the State of Delaware. The Company has all requisite limited liability company power and authority to execute, deliver and carry out the transactions contemplated by the Transaction Documents, and to issue and deliver the Class B-1 Interests. This Agreement has been duly executed and delivered by the Company and upon due execution and d...elivery by the Participant will constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except as the enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights in general or by general principles of equity. View More

Representations and Warranties of the Company. The Company hereby represents and warrants to the Collateral Agent that the statements contained in the following paragraphs of this Section 2 are all true and correct immediately prior to the execution of the Debenture. 2.1 Title. The Company owns all right, title and interest in and to the Collateral. 2.2 Right to Grant Interest. The Company has the right to grant the security interest under this Agreement to Collateral Agent in the Collateral. 2.3 No Bankruptcy. Company is not subject to any ...bankruptcy case or insolvency proceedings before any court in any jurisdiction. In the ninety (90) days preceding the date of this Agreement, the Company has not received any threat from any third party to subject the Company to any involuntary bankruptcy or insolvency proceeding. View More

Representations and Warranties of the Company. As an inducement to the Purchaser to enter into this Agreement and consummate the transaction contemplated hereby, the Company hereby makes the following representations and warranties, each of which is true and correct on the date hereof and will be true and correct on the closing date: 4.1 Organization. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is duly authorized to conduct business as currently conducted. 4....2 Authority. The Company has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms. The execution, delivery, and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by the Company. 4.3 Non-Contravention. The execution and delivery of this Agreement by the Company and the observance and performance of the terms and provisions contained herein do not constitute a violation or breach of any applicable law, or any provision of any other contract or instrument to which the Company is a party or by which it is bound, or any order, writ, injunction, decree, statute, rule, by-law or regulation applicable to the Company. 4.4 Litigation. There are no actions, suits, or proceedings pending or, to the best of the Company's knowledge, threatened, which could in any manner restrain or prevent the Company from effectually and legally selling the Unit pursuant to the terms and provisions of this Agreement. The Company is not a party to any litigation except as has been disclosed in its Form 10-K filed with the Securities and Exchange Commission (the "SEC"). 4.5 Brokers' Fees. The Company has no liability or obligation to pay fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement. 4.6 Reporting Company/Not a Shell Company. The Company is a publicly-held company subject to reporting obligations pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") and has a class of common stock registered pursuant to Section 12(g) of the Exchange Act. The Company is not and never has been a "shell company" as that term is defined in Rule 144 under the Securities Act of 1933 (the "Act"). 4.7 SEC Reports. The Company has filed with the SEC all reports required to be filed since January 1, 2005. None of the reports filed with the SEC contained any material statements which were not true and correct or omitted to state any statements of material fact necessary in order to make the statements made not misleading. 4.8 Listing. The Company's common stock is quoted on the Over-the-Counter Bulletin Board (the "Bulletin Board") under the symbol "ESPH". The Company has not received any oral or written notice that its common stock is not eligible nor will become ineligible for quotation on the Bulletin Board nor that its common stock does not meet all requirements for the continuation of such quotation. The Company satisfies all the requirements for the continued quotation of its common stock on the Bulletin Board. 4.9 Outstanding Securities. All issued and outstanding shares of capital stock and equity interests in the Company have been duly authorized and validly issued and are fully paid and non-assessable. 4.10 No Material Adverse Change. Since August 11, 2014 (filing date of the last Form 10-Q), there has not been individually or in the aggregate a Material Adverse Change with respect to the Company. For the purposes of this Agreement, "Material Adverse Change" means any event, change or occurrence which, individually or together with any other event, change, or occurrence, could result in a material adverse change on the Company or material adverse change on its business, assets, financial condition, or results of operations. Provided, however, a Material Adverse Change does not exist solely because (i) there are changes in the economy, credit markets or capital markets, or (ii) changes generally affecting the industry in which the Company operates. View More