Common use of Additional Representations and Warranties of Seller Clause in Contracts

Additional Representations and Warranties of Seller. On the Effective Date and throughout the Term, Seller hereby further represents and warrants to PGE that: 12.3.1 Seller has the right to sell the Product to PGE free and clear of liens of encumbrances; 12.3.2 Seller has title to the Product sold under this Agreement free and clear of liens and encumbrances; 12.3.3 Seller is authorized to sell power at market-based rates pursuant to FERC Dockets Number ER [ ]; 12.3.4 The Facility is either an EWG or a QF; 12.3.5 Seller has obtained, or will obtain as and when required by this Agreement, all Permits and all other rights and agreements required to construct, own, operate and maintain the Facility, and they will be in full force and effect for the Term; 12.3.6 All leases of real property and other real property rights and agreements required for the operation of the Facility or the performance of any obligations of Seller under this Agreement have been obtained and are owned by Seller, free and clear of liens and encumbrances; 12.3.7 Except as disclosed on Exhibit E, neither Seller nor any Affiliate of Seller has entered into any document, arrangement, understanding, promise or agreement or the like with any Person concerning, with respect to the Facility, (i) remediation or mitigation of environmental impacts, (ii) endangered species, (iii) migratory birds (including eagles), (iv) wildlife and species of conservation concern (state and federal), (v) environmentally, culturally or historically sensitive property or resources, (vi) a military facility, or (vii) national security. In addition, neither Seller nor any Affiliate of Seller has entered into any agreement where public disclosure of the agreement or the subject matter of the agreement could reasonably be expected to negatively affect the Facility’s reputation. 12.3.8 Except as disclosed in Exhibit K, there is no litigation, legal action or administrative action pending with respect to the Facility nor, to Seller’s knowledge, is any such litigation, legal action or administrative action threatened. 12.3.9 Seller has at all times been fully compliant with the requirements of the Federal Trade Commission’s “Green Guides,” 77 F.R. 62122, 16 C.F.R. Part 260, as amended or restated in any communication concerning Facility Output, the Facility or the Bundled RECs.

Additional Representations and Warranties of Seller. On the Effective Date and throughout the Term, Seller hereby further represents and warrants to PGE Purchaser, and to Purchaser’s successors and assigns, as of the Effective Date, that: 12.3.1 Seller (a) each Proof of Claim has been duly and timely filed in the right to sell the Product to PGE free applicable Case and clear of liens of encumbranceshas not been amended, modified, withdrawn or restated; 12.3.2 (b) the factual basis for each Claim has been determined by the Seller in good faith and the statements set forth in each Proof of Claim are true and correct; (c) Seller is the sole legal and beneficial owner of and has good and marketable title to the Product sold under this Agreement free and clear of liens and encumbrances; 12.3.3 Seller is authorized to sell power at market-based rates pursuant to FERC Dockets Number ER [ ]; 12.3.4 The Facility is either an EWG or a QF; 12.3.5 Seller has obtained, or will obtain as and when required by this Agreement, all Permits and all other rights and agreements required to construct, own, operate and maintain the Facility, and they will be in full force and effect for the Term; 12.3.6 All leases of real property and other real property rights and agreements required for the operation of the Facility or the performance of any obligations of Seller under this Agreement have been obtained and are owned by SellerTransferred Rights, free and clear of any and all liens, claims, security interests, participations, or encumbrances of any kind or nature whatsoever and will transfer to Purchaser such good and marketable title, free and clear of (i) liens and encumbrancesencumbrances of any kind, (ii) any legal, regulatory or contractual restriction on transfer or resale and (iii) any and all taxes, imposts and duties of any kind; 12.3.7 Except (d) no payment or other distribution has been received by or on behalf of Seller or Original Holder in full or partial satisfaction of the Transferred Rights; (e) neither Seller nor Original Holder has previously sold, conveyed, transferred, assigned, participated, pledged or otherwise encumbered the Transferred Rights, in whole or in part, to any party (or agreed to do any of the foregoing), except for the transfer described in Section B of the Recitals; (f) neither Seller nor Original Holder has engaged or will engage in any acts, conduct or omissions, or had any relationship with the Debtor or its affiliates, that will result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other holders of general unsecured claims against the Debtors; (g) neither Seller nor Original Holder has received any written notice, other than those publicly available in the Cases (if any) or otherwise, that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind; (h) neither Seller nor Original Holder is an “affiliate” or “insider” within the meaning of Sections 101(2) and 101(31), respectively, of the Bankruptcy Code and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Cases; (i) neither Seller nor Original Holder Seller is, or has ever been, “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code or within the meaning of Section 101(32) of the Bankruptcy Code; (j) other than as disclosed on Exhibit Erequired under clause 9 of each Bareboat Charter, neither Seller nor Original Holder has any Affiliate obligation or liability to any Debtor, holds or held on the petition date for the Case any funds or property of Seller any Debtor, or has entered into effected or will effect any documentnetting or set­off against any Debtor in respect of the Transferred Rights, arrangementin each case in any manner that would affect the Claims; (k) either (i) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans (as defined below) or (ii) the transaction exemption set forth in one or more U.S. Department of Labor Prohibited Transaction Exemptions (“PTEs”), understandingsuch as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified professional asset managers), promise or agreement or the like with any Person concerningPTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers) is applicable with respect to the Facility, (i) remediation or mitigation of environmental impacts, (ii) endangered species, (iii) migratory birds (including eagles), (iv) wildlife and species of conservation concern (state and federal), (v) environmentally, culturally or historically sensitive property or resources, (vi) a military facility, or (vii) national security. In addition, neither Seller nor any Affiliate of Seller has entered into any agreement where public disclosure sale of the agreement or Transferred Rights. “Benefit Plan” means an “employee benefit plan” as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it (“ERISA”) and subject matter to Title I thereof, a “plan” as defined in Section 4975 of the agreement could reasonably be expected to negatively affect United States Internal Revenue Code or any Entity whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Facility’s reputation. 12.3.8 Except as disclosed in Exhibit K, there is no litigation, legal action or administrative action pending with respect to United States Internal Revenue Code) the Facility nor, to Seller’s knowledge, is assets of any such litigation, legal action “employee benefit plan” or administrative action threatened. 12.3.9 Seller has at all times been fully compliant with the requirements of the Federal Trade Commission’s “Green Guides,” 77 F.R. 62122, 16 C.F.R. Part 260, as amended or restated in any communication concerning Facility Output, the Facility or the Bundled RECs.plan”;

Additional Representations and Warranties of Seller. On the Effective Date and throughout the Term, Seller hereby further represents and warrants to PGE Purchaser that, as of the date hereof: 12.3.1 Seller (a) the Charterer Claim was determined, and the Charterer Proof of Claim was prepared, based on amounts that it believes is owed to it by Charterer as a result of the Rejection; (b) the Guarantor Claim was determined, and the Guarantor Proof of Claim was prepared, based on amounts that it believes is owed to it by Guarantor under the Guarantee as a result of the Rejection; (c) no payment or other distribution has been received by or on behalf of it in full or partial satisfaction of the right Transferred Rights; (d) it is the sole legal and beneficial owner of and has good and marketable title to sell the Product to PGE Transferred Rights, free and clear of liens of encumbrances; 12.3.2 Seller has title to the Product sold under this Agreement free and clear of liens and encumbrances; 12.3.3 Seller is authorized to sell power at market-based rates pursuant to FERC Dockets Number ER [ ]; 12.3.4 The Facility is either an EWG or a QF; 12.3.5 Seller has obtained, or will obtain as and when required by this Agreement, all Permits any and all liens, claims, security interests, participations, encumbrances or adverse claims against title of any kind or nature whatsoever (other rights and agreements required to construct, own, operate and maintain the Facility, and they will be than claims in full force and effect for the Term; 12.3.6 All leases of real property and other real property rights and agreements required for the operation favor of the Facility or Purchaser arising hereunder) and will transfer to Purchaser such good and marketable title in the performance of any obligations of Seller under this Agreement have been obtained and are owned by SellerTransferred Rights, free and clear of liens and encumbrancesencumbrances of any kind (other than claims in favor of the Purchaser arising hereunder); 12.3.7 Except (e) it (i) has not previously sold, conveyed, transferred, assigned, or participated, the Transferred Rights, in whole or in part, to any party (or agreed to do any of the foregoing), (ii) has not previously pledged or otherwise encumbered the Transferred Rights, in whole or in part, to any party (or agreed to do any of the foregoing) except as disclosed on Exhibit Eset forth in the documents listed Schedule 2 to this Agreement; provided, neither Seller nor however, such pledge or encumbrances have been since released and (iii) is the original holder of the Transferred Rights; (f) it has provided to Purchaser true, correct and complete copies of all material documents evidencing the Transferred Rights, in each case, as amended through the date hereof, and all material notices, documents and agreements relating thereto, and a true, correct and complete list describing such documents is attached as Schedule 3 to this Agreement and other than such documents, there are no other agreements or documents which create, evidence or affect in any Affiliate of Seller has entered into any document, arrangement, understanding, promise or agreement or the like with any Person concerning, with respect to the Facilitymaterial way, (i) remediation or mitigation of environmental impactsthe Transferred Rights, (ii) endangered species, any action taken or to be taken by it under this Agreement or (iii) migratory birds the rights of Purchaser created or purported to be created hereby; (g) other than the Proceedings, no other proceedings are pending or to its knowledge, threatened against it, in each case, before any relevant, federal, state or other governmental department, agency, institution, authority, regulatory body, court or tribunal, foreign or domestic (and including eaglesarbitral bodies whether governmental, private or otherwise) that, in the aggregate, will adversely affect, (i) the Transferred Rights, (ii) any action taken or to be taken by it under this Agreement or (iii) the rights of Purchaser created or purported to be created hereby; (h) it has not received notice of any pending avoidance actions under Chapter 5 of the Bankruptcy Code or any other actions, claims, rights, lawsuits, and other causes of action against it or the Transferred Rights in the Proceedings, and, to its knowledge, no legal or equitable defenses, counterclaims, offsets, reductions, recoupments, impairments, avoidances, disallowances or subordinations have been asserted against it in the Proceedings or otherwise by or on behalf of any Debtor or any other party to reduce the amount of the Transferred Rights, delay or reduce distributions or impair the value of the Transferred Rights or related distributions, or otherwise affect the validity or enforceability of the Transferred Rights; (i) it has not received notice of any objection to the Transferred Rights having been filed in the Proceedings, and it has not received any notice that the Transferred Rights are void or voidable or subject to any disallowance, reduction, impairment or objection of any kind; (j) it has not engaged (and shall not engage) in any acts, conduct or omissions, and it has not had (and shall not have) any relationship with any Debtor or its affiliates that will result in Purchaser receiving in respect of the Transferred Rights proportionately less in payments or distributions or less favorable treatment than other otherwise similarly situated creditors of such Debtor; (k) other than amounts paid to it under the Original Charter Agreement in the ordinary course, it does not, and did not on the date of the commencement of the Proceedings, hold any funds or property of a Debtor, and has not effected or received, and shall not effect or receive, the benefit of any setoff against either Debtor; (l) it did not receive any payments, security interests or other transfers from a Debtor during the 91 days prior to the Petition Date for such Debtor except payments made (i) either (x) in the ordinary course of business or financial affairs of Seller and such Debtor or (y) on ordinary business terms, and (ii) in respect of indebtedness incurred in the ordinary course of business or financial affairs of Seller and such Debtor; (m) it is not an “affiliate” or “insider” of any of the Debtors within the meaning of sections 101 (2) and 101(31) of the Bankruptcy Code, respectively, and is not, and has not been, a member of any official or unofficial creditors’ committee appointed in the Proceedings; (n) it is not, and never has been, “insolvent” within the meaning of section 1 201(23) of the Uniform Commercial Code or within the meaning of section 101(32) of the Bankruptcy Code; (o) no broker, finder, agent or other entity under the authority of Seller is entitled to any commission or other fee in connection with the transactions contemplated hereby for which Purchaser could be responsible; (p) no interest in the Transferred Rights is being sold by or on behalf of one or more Benefit Plans. “Benefit Plan” means an “employee benefit plan” (as defined in ERISA) that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it (“ERISA”), (iv) wildlife and species of conservation concern (state and federal), (v) environmentally, culturally or historically sensitive property or resources, (vi) a military facility, or (vii) national security. In addition, neither Seller nor any Affiliate of Seller has entered into any agreement where public disclosure “plan” as defined in section 4975 of the agreement Code or the subject matter any entity whose assets include (for purposes of ERISA section 3(42) or otherwise for purposes of Title I of ERISA or section 4975 of the agreement could reasonably be expected to negatively affect Code) the Facility’s reputation. 12.3.8 Except as disclosed in Exhibit K, there is no litigation, legal action or administrative action pending with respect to the Facility nor, to Seller’s knowledge, is assets of any such litigation, legal action “employee benefit plan” or administrative action threatened. 12.3.9 Seller has at all times been fully compliant with the requirements of the Federal Trade Commission’s “Green Guides,plan;” 77 F.R. 62122, 16 C.F.R. Part 260, as amended or restated in any communication concerning Facility Output, the Facility or the Bundled RECs.and

Additional Representations and Warranties of Seller. On the Effective Date and throughout the Term, Seller hereby further represents and warrants to PGE that: 12.3.1 12.2.1 Seller has the right to sell the Product Products to PGE free and clear of liens of encumbrances; 12.3.2 12.2.2 Seller has title to the Product Products sold under this Agreement free and clear of liens and encumbrances; 12.3.3 12.2.3 Seller is authorized to sell power at market-based rates pursuant to FERC Dockets Number ER [ ]; 12.3.4 12.2.4 The Facility is either an EWG or a QF; 12.3.5 12.2.5 Seller has obtained, or will obtain as and when required by this Agreement, all Permits and all other rights and agreements required to construct, own, operate and maintain the Facility, and they will be in full force and effect for the Term; 12.3.6 12.2.6 All leases of real property and other real property rights and agreements required for the operation of the Facility or the performance of any obligations of Seller under this Agreement have been obtained and are owned by Seller, free and clear of liens and encumbrances; 12.3.7 12.2.7 Except as disclosed on Exhibit E, neither Seller nor any Affiliate of Seller has entered into any document, arrangement, understanding, promise or agreement or the like with any Person concerning, with respect to the Facility, (i) remediation or mitigation of environmental impacts, (ii) endangered species, (iii) migratory birds (including eagles), (iv) wildlife and species of conservation concern (state and federal), (v) environmentally, culturally or historically sensitive property or resources, (vi) a military facility, or (vii) national security. In addition, neither Seller nor any Affiliate of Seller has entered into any agreement where public disclosure of the agreement or the subject matter of the agreement could reasonably be expected to negatively affect the Facility’s reputation. 12.3.8 12.2.8 Except as disclosed in Exhibit K, there is no litigation, legal action or administrative action pending with respect to the Facility nor, to Seller’s knowledge, is any such litigation, legal action or administrative action threatened. 12.3.9 12.2.9 Seller has at all times been fully compliant with the requirements of the Federal Trade Commission’s “Green Guides,” 77 F.R. 62122, 16 C.F.R. Part 260, as amended or restated in any communication concerning Facility Output, the Facility or the Bundled RECs. 12.2.10 Seller has complied with all Laws in effect or that may be enacted during the Term. Seller shall disclose to PGE the extent of, and as soon as it is known to Seller, any violation of any Laws arising out of the construction of the Project, the presence of Environmental Contamination at the Project (actual or alleged), or the existence of any past or present enforcement, legal, or regulatory action or proceeding relating to such Environmental Contamination.