1Representations and Warranties. CM/GC represents and warrants to Owner as of the effective date of the Contract: 16.1.1 it is qualified to do business as a licensed general contractor under the laws of the State of Oregon, and has all requisite corporate power and corporate authority to carry on its business as now being conducted; 16.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated hereby; CM/GC has duly and validly executed and delivered this CM/GC Contract to Owner and that the Contract constitutes the legal, valid and binding obligation of CM/GC, enforceable against CM/GC in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); 16.1.3 CM/GC’s execution and delivery of this CM/GC Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (i) CM/GC’s Articles of Incorporation or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which CM/GC is a party or by which CM/GC may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation applicable to CM/GC; 16.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required for the valid execution, delivery and performance of the Contract by CM/GC or its consummation of the transactions contemplated hereby; 16.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity of the Contract or that would prevent or hinder the consummation of the transactions contemplated hereby; and 16.1.6 the CM/GC’s Project Manager and Assistant Project Manager identified in Article 4 are duly appointed representatives and each has the authority to bind the CM/GC to any and all duties, obligations and liabilities under the Contract Documents and any Amendments thereto.
Appears in 1 contract
1Representations and Warranties. CM/GC To induce the Secured Parties to enter into the Loan Documents and extend credit to the Borrowers, the Guarantor (i) represents and warrants as to Owner itself that all representations and warranties relating to it contained in the Loan Documents are true and correct and (ii) further represents and warrants as of the effective Closing Date and on each date a Loan is made under the Loan Agreement that:
(a) Such Guarantor is an Affiliate of the Contract:Borrowers, is the owner of a direct or indirect interest in the Borrowers, and has received, or will receive, direct or indirect benefit from the making of this Agreement with respect to the Guaranteed Obligations.
16.1.1 (b) Such Guarantor is familiar with the financial condition of the Borrowers and is familiar with the value of any and all collateral intended to be created as security for the payment of the Guaranteed Obligations; provided, however, such Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Agreement.
(c) Neither the Administrative Agent nor any other party has made any representation, warranty or statement to such Guarantor in order to induce such Guarantor to execute this Agreement.
(d) Such Guarantor has been duly organized and is validly existing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Such Guarantor is duly qualified to do business as and in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations, except to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a licensed general contractor under material adverse effect on (i) the laws property, business, operations or financial conditions of the State Guarantor or (ii) the ability of Oregonthe Guarantor to perform its obligations hereunder (a “Material Adverse Effect”).
(e) Such Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement has all requisite corporate power and corporate authority to carry on its business as now being conducted;
16.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated hereby; CM/GC has been duly and validly executed and delivered this CM/GC Contract to Owner by or on behalf of such Guarantor and that the Contract constitutes the a legal, valid and binding obligation of CM/GCsuch Guarantor, enforceable against CM/GC such Guarantor in accordance with its terms, except as enforceability may be limited or affected by subject only to applicable bankruptcy, insolvency, reorganization, moratorium or other insolvency and similar laws affecting creditors’ rights generally of creditors generally, and by subject, as to enforceability, to general principles of equity (regardless of whether enforceability enforcement is considered sought in a proceeding in equity or at law);.
16.1.3 CM/GC’s execution (f) The execution, delivery and delivery performance of this CM/GC Contract and the consummation of the transactions contemplated hereby Agreement by such Guarantor (i) will not conflict with or result in a material breach of any of the terms or provisions of, or constitute a material default under, (i) CM/GCsuch Guarantor’s Articles of Incorporation or Bylaws; Constituent Documents, (ii) will not result in any noteviolation of the provisions of any statute or any order, bondrule or regulation of any Governmental Authority having jurisdiction over such Guarantor or any of such Guarantor’s properties or assets, (iii) will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under the terms of any indenture, mortgage, indenturedeed of trust, licensedeed to secure debt, leaseloan agreement, contract, commitment, management agreement or other agreement or instrument or obligation to which CM/GC such Guarantor is a party or by to which CM/GC may any of such Guarantor’s property or assets is subject, that could, individually or in the aggregate, be bound; reasonably expected to have a Material Adverse Effect and (iv) except for Liens created under the Loan Documents, result in or (iii) require the creation or imposition of any statute, order, writ, injunction, decree, rule Lien upon or regulation applicable with respect to CM/GC;
16.1.4 no material any of the assets of such Guarantor. Any consent, approval, authorization, declaration or other order oforder, or registration or filing with, qualification of or with any court or regulatory authority or any third person is Governmental Authority required for the valid execution, delivery and performance by such Guarantor of this Agreement has been obtained and is in full force and effect.
(g) There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other entity now pending or, to such Guarantor’s actual knowledge, threatened against or affecting such Guarantor, which actions, suits or proceedings could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) Such Guarantor has (i) not entered into the transaction contemplated by this Agreement with the actual intent to hinder, delay or defraud any creditor and (ii) received reasonably equivalent value in exchange for its obligations under this Agreement. After giving effect to this Agreement, such Guarantor is Solvent. No petition in bankruptcy has been filed against such Guarantor in the last seven (7) years prior to the date of this Agreement, and such Guarantor has not, in the last seven (7) years prior to the date of this Agreement, made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. Such Guarantor is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of its assets or property, and, to the Guarantor’s knowledge, no Person is contemplating the filing of any such petition against it.
(i) The Guarantor is not required to register as an “investment company” under the Investment Company Act of 1940, as amended.
(i) The Guarantor, collectively with the Peak Sponsor, owns directly or indirectly one-hundred percent (100%) of the Contract by CM/GC or its consummation Equity Interests of each Equity Owner and (ii) each Equity Owner owns directly (in the case of the transactions contemplated hereby;
16.1.5 there is no action, proceeding, suit, investigation Borrowers) or inquiry pending that questions directly or indirectly (in the validity case of the Contract or that would prevent or hinder the consummation TRS Borrowers) one hundred percent (100%) of the transactions contemplated hereby; andEquity Interests of its subsidiary Borrowers and its subsidiary TRS Borrowers.
16.1.6 (k) The Guarantor is not a “foreign person” within the CM/GC’s Project Manager meaning of § 1445(f)(3) of the Code. The representations and Assistant Project Manager identified warranties contained in Article 4 are duly appointed representatives this Section 3.1 shall survive the execution and each has delivery of this Agreement and the authority to bind payment and performance of the CM/GC to any and all duties, obligations and liabilities under the Contract Documents and any Amendments theretoGuaranteed Obligations.
Appears in 1 contract
1Representations and Warranties. CM/GC In order to induce Lender to enter into this Amendment, Borrower represents and warrants to Owner as of the effective date of the Contractfollowing:
16.1.1 it is qualified (a) Borrower has the corporate power to do business as a licensed general contractor under execute and deliver this Amendment, the laws Renewal Note and other Loan Documents and to perform all of its obligations in connection herewith and therewith.
(b) The execution and delivery by Borrower of this Amendment, the State of OregonRenewal Note, and has other Loan Documents and the performance of its obligations in connection herewith and therewith (i) have been duly authorized or will be duly ratified and affirmed by all requisite corporate power action; (ii) will not violate any provision of law, any order of any court or agency of government or the Certificate of Formation or Bylaws of such entity; (iii) to the knowledge of the Borrower, will not be in conflict with, result in a breach of or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument; and corporate (iv) will not require any registration with, consent or approval of or other action by any federal, state, provincial or other governmental authority or regulatory body.
(c) Other than as disclosed in its quarterly report on Form 10-Q for the quarter ended September 30, 2021 as filed by Borrower with the Securities and Exchange Commission, there is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or, to the knowledge of Borrower, threatened against or affecting Borrower, or any properties or L & B 15909/0004/L2042745.DOCX/4 2 CBTX, Inc. First Amendment to Loan Agreement rights of Borrower, or involving this Amendment or the transactions contemplated hereby which, if adversely determined, would materially impair the right of Borrower to carry on its business substantially as now being conducted;
16.1.2 it has full corporate power conducted or materially and corporate authority to enter into adversely affect the financial condition of Borrower, or materially and perform adversely affect the Contract and ability of Borrower to consummate the transactions contemplated hereby; CM/GC has duly by this Amendment.
(d) The representations and validly executed warranties of Borrower contained in the Loan Agreement, this Amendment, the Renewal Note and delivered this CM/GC Contract any other Loan Document securing Borrower's Obligations and indebtedness to Owner Lender are correct and that the Contract constitutes the legal, valid and binding obligation of CM/GC, enforceable against CM/GC accurate in accordance with its terms, except all material respects as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
16.1.3 CM/GC’s execution and delivery of this CM/GC Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach date hereof as though made on and as of any terms or provisions of, or constitute a material default under, the date hereto except to the extent that (i) CM/GC’s Articles of Incorporation any such representation or Bylaws; warranty specifically refers to an earlier date, in which case such representation or warranty was true and correct in all respects on such earlier date, and (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to the facts upon which CM/GC is a party or such representations are based have been changed by which CM/GC may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation applicable to CM/GC;
16.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required for the valid execution, delivery and performance of the Contract by CM/GC or its consummation of the transactions contemplated hereby;
16.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity of the Contract or that would prevent or hinder the consummation of the transactions contemplated hereby; and
16.1.6 the CM/GC’s Project Manager and Assistant Project Manager identified in Article 4 are duly appointed representatives and each has the authority to bind the CM/GC to any and all duties, obligations and liabilities under the Contract Documents and any Amendments thereto.herein contemplated.
Appears in 1 contract
Samples: Loan Agreement (CBTX, Inc.)
1Representations and Warranties. CM/GC LanzaTech HK represents and warrants to Owner as of the effective date of the Contract:
16.1.1 it is qualified to do business as a licensed general contractor under the laws of the State of Oregon, and has all requisite corporate power and corporate authority to carry on its business as now being conducted;
16.1.2 Effective Date that (i) it has full corporate power the right and corporate authority to enter into this Agreement and perform grant the Contract rights and to consummate the transactions contemplated hereby; CM/GC has duly and validly executed and delivered this CM/GC Contract to Owner and that the Contract constitutes the legal, valid and binding obligation of CM/GC, enforceable against CM/GC in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
16.1.3 CM/GC’s execution and delivery of this CM/GC Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (i) CM/GC’s Articles of Incorporation or Bylawslicenses thereunder; (ii) it or any noteof its affiliates has not previously granted and will not grant any right, bondlicense or interest in the Licensed Subject Matter, mortgageor any portion thereof, indenture, license, lease, contract, commitment, agreement or other instrument or obligation inconsistent with the rights and licenses granted to which CM/GC is a party or by which CM/GC may be boundJV-Company in this Agreement; or (iii) any statutein the event that one or more of the patent applications set out in Exhibit C herein are not granted the patent rights, orderand/or in the event that one or more granted patents set out in the Licensed IPR expire, writthe scope and validity of the license provided herein remain unchanged; (iv) to its and its affiliates’ Knowledge there are no threatened or pending claims of third parties that would call into question its right to grant to JV-Company the rights granted in this Agreement; (v) to its and its affiliates’ Knowledge, injunctionthe practice of the Licensed Subject Matter in accordance with the terms of this Agreement, decree, rule does not infringe or regulation applicable threaten to CM/GC;
16.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or infringe the intellectual property rights of any third person is required for the valid executionparty, delivery and performance even if one or more of the Contract by CM/GC or patent applications set out in Exhibit C herein are not granted the patent rights; (vi) to its consummation of the transactions contemplated hereby;
16.1.5 and its affiliates’ Knowledge and expectations, there is will be no action, proceeding, suit, investigation proceeding or inquiry pending that questions claim by any third party challenging the validity of any patents within the Contract Licensed Subject Matter if such patent applications are granted the patent rights, and there are no facts which would support any such challenge; (vii) to its and its affiliates’ Knowledge, there are no facts or circumstances that would prevent or hinder the consummation Licensed Subject Matter from being used in the conduct of the transactions contemplated herebyExclusive Licensed Business and/or Non-Exclusive Licensed Business; and
16.1.6 and (viii) it or any of its affiliates has not intentionally omitted any commercialized technology or Intellectual Property Rights from the CM/GC’s Project Manager Licensed Subject Matter that, to its and Assistant Project Manager identified in Article 4 are duly appointed representatives its affiliates’ Knowledge, would make the operation of the Exclusive Licensed Business and/or Non-Exclusive Licensed Business commercially more successful, and each (ix) LanzaTech HK has the authority right to bind authorize the CM/GC to any free use license of all the relevant patents and all duties, obligations proprietary technology owned by LanzaTech HK and liabilities under the Contract Documents and any Amendments theretoits affiliates.
Appears in 1 contract
1Representations and Warranties. CM/GC To induce Lender to execute this Agreement and perform its obligations hereunder, Borrower hereby represents and warrants to Owner Lender as of the effective date of the Contractfollows:
16.1.1 it (a) Borrower has good and marketable fee simple title to the Project, subject only to the Permitted Exceptions.
(b) No litigation or proceedings are pending, or to the best of Borrower’s knowledge threatened, against Borrower or any Guarantor, which could, if adversely determined, cause a Material Adverse Change with respect to Borrower, any Guarantor or the Project. Borrower has no knowledge of any pending or threatened Environmental Proceedings or any facts or circumstances which may give rise to any future Environmental Proceedings.
(c) Borrower is qualified a duly organized and validly existing limited liability company and has full power and authority to do business as execute, deliver and perform all Loan Documents to which Borrower is a licensed general contractor under the laws of the State of Oregonparty, and has such execution, delivery and performance have been duly authorized by all requisite corporate power and corporate authority to carry action on its business as now being conducted;the part of Borrower.
16.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated hereby; CM/GC has duly and validly executed and delivered this CM/GC Contract to Owner and that the Contract constitutes the legal, valid and binding obligation of CM/GC, enforceable against CM/GC in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
16.1.3 CM/GC’s execution and delivery of this CM/GC Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (id) CM/GC’s Articles of Incorporation or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which CM/GC is a party or by which CM/GC may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation applicable to CM/GC;
16.1.4 no material No consent, approvalapproval or authorization of or declaration, authorization, declaration or other order of, or registration or filing withwith any Governmental Authority or nongovernmental person or entity, including any court creditor, partner, or regulatory authority member of Borrower or any third person Guarantor, is required for in connection with the valid execution, delivery and performance of the Contract by CM/GC this Agreement or its consummation any of the transactions contemplated hereby;Loan Documents other than the recordation of the Mortgage, Assignment of Rents and the filing of UCC‑1 Financing Statements, except for such consents, approvals or authorizations of or declarations or filings with any Governmental Authority or non‑governmental person or entity where the failure to so obtain would not have an adverse effect on Borrower or such Guarantor or which have been obtained as of any date on which this representation is made or remade.
16.1.5 there (e) The execution, delivery and performance of this Agreement, the execution and payment of the Note and the granting of the Mortgage and other security interests under the other Loan Documents have not constituted and will not constitute, upon the giving of notice or lapse of time or both, a breach or default under any other agreement to which Borrower or any Guarantor is a party or may be bound or affected, or a violation of any law or court order which may affect the Project, any part thereof, any interest therein, or the use thereof.
(f) There is no actiondefault under this Agreement or the other Loan Documents, proceedingnor any condition which, suitafter notice or the passage of time or both, would constitute a default or an Event of Default under said documents.
(g) To Borrower’s knowledge (i) no condemnation of any portion of the Project, (ii) no condemnation or relocation of any roadways abutting the Project, and (iii) no proceeding to deny access to the Project from any point or planned point of access to the Project, has commenced or is contemplated by any Governmental Authority.
(h) No brokerage fees or commissions are payable by or to any person in connection with this Agreement or the Loan to be disbursed hereunder.
(i) All financial statements and other information prepared by and previously furnished by Borrower or any Guarantor to Lender in connection with the Loan are true, complete and correct and fairly present the financial conditions of the subjects thereof as of the respective dates thereof and do not fail to state any material fact necessary to make such statements or information not misleading, and no Material Adverse Change with respect to Borrower or any Guarantor has occurred since the respective dates of such statements and information. Neither Borrower nor any Guarantor has any material liability, contingent or otherwise, not disclosed in such financial statements.
(j) To Borrower’s knowledge, except as disclosed in any materials provided to Lender, (i) the Project is in a clean, safe and healthful condition, and, except for materials used in the ordinary course of construction, maintenance and operation of the Project, is free of all Hazardous Material and is in compliance with all applicable Laws; (ii) neither Borrower nor any other person or entity, has ever caused or permitted any Hazardous Material to be placed, held, located or disposed of on, under, at or in a manner to affect the Project, or any part thereof, and the Project has never been used for any activities involving, directly or indirectly, the use, generation, treatment, storage, transportation, or disposal of any Hazardous Material; (iii) neither the Project nor Borrower is subject to any existing, pending, or threatened investigation or inquiry pending that questions by any Governmental Authority, and the validity Project is not subject to any remedial obligations under any applicable Laws pertaining to health or the environment; and (iv) there are no underground tanks, vessels, or similar facilities for the storage, containment or accumulation of Hazardous Materials of any sort on, under or affecting the Project.
(k) The Project is taxed in separate folios, separately without regard to any other property and for all purposes the Project may be mortgaged, conveyed and otherwise dealt with as independent parcels.
(l) The Loan is not being made for the purpose of purchasing or carrying “margin stock” within the meaning of Regulation G, T, U or X issued by the Board of Governors of the Contract or that would prevent or hinder Federal Reserve System, and Borrower agrees to execute all instruments necessary to comply with all the consummation requirements of Regulation U of the transactions contemplated hereby; andFederal Reserve System.
16.1.6 the CM/GC’s Project Manager and Assistant Project Manager identified (m) Borrower is not a party in Article 4 are duly appointed representatives and each has the authority to bind the CM/GC interest to any plan defined or regulated under ERISA, and the assets of Borrower are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue Code.
(n) Borrower is not a “foreign person” within the meaning of Section 1445 or 7701 of the Internal Revenue Code.
(o) Other than the name Crossings at Riverview, Borrower uses no trade name other than its actual name set forth herein. The principal place of business of Borrower is Florida.
(p) Borrower entities’ place of formation or organization is the State of Delaware.
(q) All statements set forth in the Recitals are true and correct in all dutiesmaterial respects.
(r) Neither Borrower or any Guarantor is (or will be) a person with whom Lender is restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury of the United States of America (including, obligations those Persons named on OFAC’s Specially Designated and liabilities Blocked Persons list) or under any statute, executive order (including, the Contract Documents September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and shall not engage in any Amendments theretodealings or transactions or otherwise be associated with such persons. In addition, Borrower hereby agrees to provide to the Lender with any additional information that the Lender deems necessary from time to time in order to ensure compliance with all applicable Laws concerning money laundering and similar activities.
Appears in 1 contract
Samples: Loan Agreement
1Representations and Warranties. CM/GC The Purchaser represents and warrants to Owner as of and covenants with the effective date of the ContractCompany that:
16.1.1 it (a) The Purchaser is qualified to do business as a licensed general contractor under the laws of the State of Oregonvalidly existing corporation, limited partnership or limited liability company and has all requisite corporate corporate, partnership or limited liability company power and corporate authority to carry on its business as now being conducted;
16.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated by the Transaction Documents and to carry out its obligations hereunder and thereunder, and to purchase the Shares pursuant to this Agreement.
(b) The Purchaser acknowledges that it can bear the economic risk and complete loss of its investment in the Shares and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby; CM/GC . The Purchaser has duly had an opportunity to receive, review and validly executed understand all information related to the Company requested by it and delivered this CM/GC Contract to Owner ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Shares, and has conducted and completed its own independent due diligence. The Purchaser acknowledges that the Contract constitutes Company has made available the legalSEC Documents. Based on the information the Purchaser has deemed appropriate, valid and binding obligation of CM/GCwithout reliance upon any third-party, enforceable against CM/GC in accordance it has independently made its own analysis and decision to enter into the Transaction Documents. The Purchaser is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
16.1.3 CM/GC’s execution and delivery of this CM/GC Contract and respect to the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (i) CM/GC’s Articles of Incorporation or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which CM/GC is a party or by which CM/GC may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation applicable to CM/GC;
16.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required for the valid execution, delivery and performance of the Contract by CM/GC Transaction Documents, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and has received no representations with regard to the Company or its business, condition (financial and otherwise), management, operations, properties and prospects, except for those set forth in the Transaction Documents.
(c) The Shares will be acquired for the Purchaser’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Purchaser’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and state securities laws. The Purchaser is not a broker-dealer registered with the SEC under the Exchange Act or an entity engaged in a business that would require it to be so registered. The Purchaser understands that the Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the securities purchased hereunder except in compliance with the Standstill Agreement, Securities Act, applicable blue sky laws, and the rules and regulations promulgated thereunder. The Purchaser has no present intent to effect a “change of control” of the Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the Exchange Act.
(d) The Purchaser is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act. The Purchaser has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Shares and participation in the transactions contemplated by the Transaction Documents (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to the Purchaser, (iii) have been duly authorized and approved by all necessary action, (iv) do not and will not violate or constitute a default under the Purchaser’s charter, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which the Purchaser is bound and (v) are a fit, proper and suitable investment for the Purchaser, notwithstanding the substantial risks inherent in investing in or holding the Shares.
(e) The execution, delivery and performance by the Purchaser of the Transaction Documents to which the Purchaser is a party have been, or as of the Closing Date, will have been, duly authorized and each has been or, as of the Closing Date, will have been, duly executed and when delivered will constitute the valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with their respective terms, subject to the Enforceability Limitations.
(f) The execution, delivery and performance by the Purchaser of the Transaction Documents and the consummation by the Purchaser of the transactions contemplated hereby;
16.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity hereby and thereby will not (i) result in a violation of the Contract organizational documents of the Purchaser, (ii) conflict with, or that constitute a default (or an event which with notice or lapse of time or both would prevent become a default) under, or hinder give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the consummation Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Purchaser to perform its obligations under the Transaction Documents.
(g) No third-party will have, as a result of the transactions contemplated hereby; and
16.1.6 by this Agreement, any valid right, interest or claim against or upon the CM/GC’s Project Manager and Assistant Project Manager identified in Article 4 are duly appointed representatives and each has the authority to bind the CM/GC Company or any Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Purchaser. Purchaser is not a broker or dealer registered pursuant to Section 15 of the Exchange Act (a “registered broker-dealer”) and is not affiliated with a registered broker dealer. Purchaser is not party to any agreement for distribution of any of the Shares.
(h) Purchaser shall have completed or caused to be completed and delivered to the Company no later than the Closing Date, the Purchaser Questionnaire, and the answers to the Purchaser Questionnaire are true and correct in all dutiesmaterial respects as of the date of this Agreement and will be true and correct as of the Closing Date and the effective date of the Registration Statement; provided that the Purchasers shall be entitled to update such information by providing notice thereof to the Company before the effective date of such Registration Statement.
(i) To the extent the Purchaser provides a written request to the Company to file a registration statement pursuant to the Registration Rights Agreement, obligations the Purchaser shall have completed or caused to be completed and liabilities delivered to the Company concurrently with such written request to the Company, the Selling Stockholder Questionnaire, and the answers to the Selling Stockholder Questionnaire are true and correct as of the date of such written request and the effective date of the Registration Statement; provided that the Purchasers shall be entitled to update such information by providing notice thereof to the Company before the effective date of such Registration Statement.
(j) The Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon, or made any recommendation or endorsement of the Company or the purchase of the Shares.
(k) The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(l) The Purchaser did not learn of the investment in the Shares as a result of any general solicitation or general advertising.
(m) Other than pursuant to this Agreement, neither the Purchaser nor any of its Affiliates currently owns any interest in or has contracted to purchase any shares of Common Stock or any securities convertible into or exerciseable or exchangeable for shares of Common Stock.
(n) The Purchaser is aware that the anti-manipulation rules of Regulation M under the Contract Documents Exchange Act may apply to sales of Common Stock and any Amendments theretoother activities with respect to the Shares purchased by the Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement
1Representations and Warranties. CM/GC As of the date hereof, each party hereto represents and warrants to Owner as of the effective date of the Contractother parties hereto that:
16.1.1 (a) it is qualified to do business as a licensed general contractor duly organized and validly existing under the laws of its jurisdiction of incorporation or establishment and it has the State of Oregon, and has all requisite corporate power and corporate authority to carry on its business as now being conducted;
16.1.2 it has full corporate power and corporate the authority to enter into and perform its obligations under this Agreement (including, in the Contract case of the Issuer, to pay any Termination Amount);
(b) this Agreement, and with respect to consummate the transactions contemplated hereby; CM/GC has Issuer, the Financing Documents, have been duly and validly authorized, executed and delivered this CM/GC Contract to Owner by the applicable party and, assuming the due authorization, execution and that delivery hereof by the Contract other parties hereto and thereto, each constitutes the a legal, valid and binding obligation of CM/GCsuch applicable party, enforceable against CM/GC it in accordance with its terms, except as enforceability may be limited or affected by subject to applicable bankruptcy, insolvency, reorganization, moratorium or other insolvency and similar laws affecting creditors’ rights generally generally, and by subject, as to enforceability, to general principles of equity (regardless of whether enforceability enforcement is considered sought in a proceeding in equity or at law);
16.1.3 CM/GC’s (c) its execution and delivery of this CM/GC Contract Agreement and the consummation its performance of the transactions contemplated hereby its obligations hereunder do not and will not conflict with constitute or result in a material default under, a breach of any terms or provisions violation of, or constitute a material default underthe creation of any lien or encumbrance on any of its property under its charter or by-laws (or equivalent organizational documents) or any other agreement (including in the case of the Issuer the Financing Documents), (i) CM/GC’s Articles of Incorporation instrument, law, ordinance, regulation, judgment, injunction or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which CM/GC is a party or by which CM/GC may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation order applicable to CM/GCit or any of its property;
16.1.4 no material consent(d) all consents, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required authorizations and approvals requisite for the valid its execution, delivery and performance of the Contract by CM/GC this Agreement have been obtained and remain in full force and effect and all conditions thereof have been duly complied with, and no other action by, and no notice to or its consummation of the transactions contemplated herebyfiling with, any governmental authority or regulatory body is required for such execution, delivery or performance;
16.1.5 (e) there is no actionproceeding pending or threatened against it at law or in equity, proceedingor before any governmental instrumentality or in any arbitration, which would materially impair its ability to perform its obligations under this Agreement, and there is no such proceeding pending against it which purports or is likely to affect the legality, validity or enforceability of this Agreement;
(f) in the case of the Issuer:
(i) the Resolution has been duly adopted and approved by the Board of Directors of the Issuer and the Resolution is in full force and effect on the date hereof and no amendment, waiver or course of dealing has amended or terminated any of the terms thereof since the original adoption of the Resolution, except such as may have been delivered to the Provider pursuant to Section 5.1(e);
(ii) the Scheduled Fund Amount is the amount the Issuer is required to have on deposit in the Fund on each Delivery Date pursuant to the terms of the Financing Documents;
(iii) it is not entitled to claim, and shall not assert any claim, with respect to itself or its revenues, assets or property (irrespective of the use or intended use thereof), of immunity on the grounds of sovereignty or similar grounds from suit, investigation jurisdiction of any court, relief by way of injunction, order for specific performance or inquiry pending that questions for recovery of property, attachment of its assets (whether before or after judgment, in aid of execution, or otherwise) and execution or enforcement of any judgment to which it or its revenues or assets or property might otherwise be entitled in any suit, action or proceeding relating to this Agreement in the validity courts of any jurisdiction, nor may there be attributed to the Issuer or its revenues, assets or property any such immunity (nor shall such attribution be claimed by the Issuer);
(iv) there have been no withdrawals from any debt service reserve fund relating to obligations of the Contract Issuer in order to cover a shortfall in amounts available to make payment of amounts due on such obligations;
(v) it has entered into this Agreement for purposes of managing its borrowings or investments by increasing the predictability of its cash flow from earnings on its investments and not for purposes of speculation;
(vi) this Agreement is the only investment agreement or other similar agreement that would prevent or hinder is outstanding with respect to the consummation investment of funds held in the Fund;
(vii) the investment of funds pursuant to this Agreement constitutes a permitted investment under the Resolution and the Purchase Contract;
(viii) the obligation of the transactions contemplated herebyIssuer to fund the Fund pursuant to Section 3.4 of the Purchase Contract constitutes an absolute and unconditional obligation of the Issuer;
(ix) it had the power and authority to enter into and perform its obligations under the Financing Documents, and the Financing Documents are in full force and effect on the date hereof and no amendment or waiver has amended or terminated any of the terms thereof since the original execution and delivery of the Financing Documents; and
16.1.6 (x) to the CM/GCknowledge of the Issuer, no “event of default”, or event which would with the passage of time or the giving of notice or both constitute an event of default, has occurred and is continuing under any of the Financing Documents.
(g) in the case of the Custodian:
(i) it is, and will at all times be acting as, a “securities intermediary” within the meaning of Section 8-102 of the UCC and the Account established hereunder will be “securities account” within the meaning of Section 8- 501 of the UCC;
(ii) it is a national banking association located in the State of Minnesota and authorized to do business in the State of New York; and
(iii) (i) it is duly organized, validly existing, and authorized to conduct its business relevant hereto; (ii) this Agreement constitutes a legal, valid, binding and enforceable obligation of the Custodian; and (iii) no authorization, license or approvals of, or registrations or declarations with any Federal or State of New York governmental or other authority are required to be obtained or made in connection with the Custodian’s Project Manager execution and Assistant Project Manager identified in Article 4 are duly appointed representatives delivery or, and each has the authority to bind the CM/GC to any and all dutiesperformance of its obligations under, obligations and liabilities under the Contract Documents and any Amendments theretothis Agreement.
Appears in 1 contract
