as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
3.3.
Structuring Fee Securities.
The Structuring Fee Securities,
when issued, sold and delivered in accordance with the terms and for the
consideration set forth in this Agreement, will be validly issued, fully paid
and nonassessable and free of restrictions on transfer other than
(i) restrictions on transfer set forth in (y) the Charter or (z) applicable
state and federal securities laws and (ii) liens or encumbrances created by or
imposed by Hunt-InfraREIT. Assuming the accuracy of the representations of
Hunt-InfraREIT in Section 4 of this Agreement, the Structuring Fee Securities
will be issued in material compliance with all applicable federal and state
securities laws.
4.
Representations and Warranties of Hunt-InfraREIT.
Hunt-InfraREIT hereby
represents and warrants to the Company as follows:
4.1.
Organization, Good Standing, Power and
Qualification.
Hunt-InfraREIT is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite limited liability company power and authority to own and
operate its properties and assets and to carry on its business as presently
conducted and as proposed to be conducted.
4.2.
Authorization.
This Agreement and the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company action on behalf of Hunt-InfraREIT in order to authorize Hunt-InfraREIT
to enter into this Agreement. This Agreement, when executed and delivered by
Hunt-InfraREIT, shall constitute a valid and legally binding obligation of
Hunt-InfraREIT, enforceable against Hunt-InfraREIT in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, or other laws of general application relating
to or affecting the enforcement of creditors' rights generally, or (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
4.3.
Acquisition Entirely for Own Account.
This Agreement is made
with Hunt-InfraREIT in reliance upon Hunt-InfraREIT's representation to the
Company, which by Hunt-InfraREIT's execution of the Agreement, Hunt-InfraREIT
hereby confirms, that, subject to the final sentence of this Section 4.3, the
Structuring Fee Securities to be acquired by Hunt-InfraREIT will be acquired for
investment for Hunt-InfraREIT's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that
Hunt-InfraREIT has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement,
Hunt-InfraREIT further represents that, subject to the final sentence of this
Section 4.3, Hunt-InfraREIT does not presently have any
2
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Structuring Fee Securities. Hunt-InfraREIT has not been
formed for the specific purpose of acquiring the Structuring Fee Securities.
Notwithstanding anything to the contrary contained in this Section 4.3,
Hunt-InfraREIT has agreed to transfer a portion of the shares of Common Stock
issued to it hereunder