Additional Representations, Warranties and Covenants. Each party represents that it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with any other person, corporation or other entity. Each party represents that it has full power and authority under applicable law, and has taken all action necessary to enter into and perform this Agreement and the person executing this Agreement on its behalf is duly authorized and empowered to execute and deliver this Agreement. Additionally, each party represents that this Agreement, when executed and delivered, shall constitute its valid, legal and binding obligation, enforceable in accordance with its terms. Plan Provider further represents, warrants, and covenants that:
(a) it is registered as a transfer agent pursuant to Section 17A of the Securities Exchange Act of 1934, as amended (the "1934 Act"), or is not required to be registered as such;
(b) the arrangements provided for in this Agreement will be disclosed to the Plan Representatives; and
(c) it is registered as a broker-dealer under the 1934 Act or any applicable state securities laws, or, including as a result of entering into and performing the services set forth in this Agreement, is not required to be registered as such. Distributor further represents, warrants and covenants, that:
(a) it is registered as a broker-dealer under the 1934 Act and any applicable state securities laws; and
(b) the Funds' advisors are registered as investment advisors under the Investment Advisers Act of 1940, the Funds are registered as investment companies under the 1940 Act and Fund Shares are registered under the Securities Act.
Additional Representations, Warranties and Covenants. Each party represents that it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with any other person, corporation or other entity. Each party represents that it has full power and authority under applicable law, and has taken all action necessary to enter into and perform this Agreement and the person executing this Agreement on its behalf is duly authorized and empowered to execute and deliver this Agreement. Additionally, each party represents that this Agreement, when executed and delivered, shall constitute its valid, legal and binding obligation, enforceable in accordance with its terms. Plan Provider further represents, warrants, and covenants that:
(a) it is registered as a transfer agent pursuant to Section 17A of the Securities Exchange Act of 1934, as amended (the "1934 Act"), or is not required to be registered as such;
(b) the arrangements provided for in this Agreement will be disclosed to the Plan Representatives; and
(c) it is registered as a broker-dealer under the 1934 Act or any applicable state securities laws, or, including as a result of entering into and performing the services set forth in this Agreement, is not required to be registered as such.
(d) it will ensure that either it, its affiliates or another person other than Distributor is the registered broker-dealer for any transaction made pursuant to this Agreement, that Distributor is not responsible for determining whether Shares are suitable investments for the participants, and that any such registered broker-dealer shall have the appropriate selling group agreement with Distributor in place at the time such transaction occurs. Further, Plan Provider will provide indemnification to Distributor or its affiliates for any breach of this subsection. (e) it is a member of the National Securities Clearing Corporations ("NSCC") and has executed and filed the standard NSCC Fund/SERV Agreement with the NSCC and will abide by its terms and the applicable rules. Plan Provider further represents and warrants that it or an affiliate is a member of the NSCC and has executed and filed with the NSCC the standard NSCC Fund/SERV Agreement. Plan Provider further represents and warrants that it will abide by the NSCC Fund/SERV rules and agrees that it will perform its duties and obligations under this Agreement in accordance with the terms of the NSCC Fund/SERV Agreement except as otherwise specified in a writing...
Additional Representations, Warranties and Covenants. The Member (i) consents to the placement of a legend on any certificate or other document evidencing the Member’s ARMEAU Shares substantially in the form set forth in Section 3.8(a); (ii) has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect his interests in connection with the transactions contemplated by this Agreement; (iii) has consulted, to the extent that he has deemed necessary, with his tax, legal, accounting and financial advisors concerning the Member’s acquisition of the ARMEAU Shares and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the ARMEAU Shares; (iv) has had access to the SEC Reports; (vi) has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding ARMEAU that such the Member has requested and all such public information is sufficient for the Member to evaluate the risks of acquiring the ARMEAU Shares; (vii) has been afforded the opportunity to ask questions of and receive answers concerning ARMEAU and the terms and conditions of the issuance of the ARMEAU Shares; (viii) is not relying on any representations and warranties concerning ARMEAU made by ARMEAU or any officer, employee or agent of ARMEAU, other than those contained in this Agreement or the SEC Reports; (ix) will not sell or otherwise transfer the ARMEAU Shares, unless either (A) the transfer of the ARMEAU Shares is registered under the Securities Act; or (B) an exemption from registration of the ARMEAU Shares is available; (x) understands and acknowledges that ARMEAU is under no obligation to register the ARMEAU Shares for sale under the Securities Act; (xi) represents and warrants that the address furnished to ARMEAU is the principal residence of the Member; (xii) understands and acknowledges that the ARMEAU Shares have not been recommended by any federal or state securities commission or regulatory authority, that the foregoing authorities have not confirmed the accuracy or determined the adequacy of any information concerning ARMEAU that has been supplied to the Member and that any representation to the contrary is a criminal offense; and (xiii) acknowledges that the representations, warranties and agreements made by the Member herein shall survive the execution and delivery of this Agreement and the acquisition of the ARMEAU Shares.
Additional Representations, Warranties and Covenants. Each of Borrower and Guarantor, jointly and severally, represents, warrants and covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrower:
(a) this Amendment has been duly authorized, executed and delivered by all necessary action on the part of Borrower and Guarantor which is a party hereto and, if necessary, its stockholders or members, and the agreements and obligations of Borrower and Guarantor contained herein constitute the legal, valid and binding obligations of Borrower and Guarantor enforceable against Borrower and Guarantor in accordance with their respective terms;
(b) No action of, or filing with, or consent of any Governmental Authority, and no approval or consent of any other third party (including, without limitation, the Senior Note Trustee), is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Amendment;
(c) neither the execution and delivery of this Amendment, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof (i) does or shall conflict with or result in the breach of, or constitute a default in any respect under any mortgage, deed of trust, security agreement or other agreement, document or instrument to which Borrower or Guarantor is a party or may be bound (including, without limitation, the Senior Note Indenture), or (ii) shall violate any provision of the certificate of incorporation, certificate of formation, bylaws or operating agreement, as applicable, of Borrower or Guarantor; and
(d) as of the date of this Amendment, no Default or Event of Default exists or has occurred and is continuing.
Additional Representations, Warranties and Covenants. Borrower hereby represents, warrants and covenants to Lender the following, the truth and accuracy of which, and compliance with which, shall be continuing conditions of the making of loans or other credit accommodations by Lender to Borrower:
Additional Representations, Warranties and Covenants. In addition to the continuing representations, warranties and covenants heretofore made in the Loan Agreement or otherwise and hereafter made by Borrower and Guarantors to Lender, whether pursuant to the Financing Agreements or otherwise, and not in limitation thereof, Borrower and Guarantors hereby represent, warrant and covenant with, to and in favor of Lender the following (which shall survive the execution and delivery of this Agreement), the truth and accuracy of which, or compliance with, to the extent such compliance does not violate the terms and provisions of the Bankruptcy Code, being a continuing condition of the making of loans by Lender:
4.1 This Eighth Ratification Amendment has been duly authorized, executed and delivered by Borrower and Guarantors and the agreements and obligations of Borrower and Guarantors contained herein constitute legal, valid and binding obligations of Borrower and Guarantors enforceable against Borrower and Guarantors in accordance with their respective terms.
4.2 No Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Eighth Ratification Amendment.
Additional Representations, Warranties and Covenants. Each party represents that it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with any other person, corporation or other entity. The Service Provider further represents, warrants, and covenants that:
a. it has full power and authority under applicable law, and has taken all action necessary, to enter into and perform this Agreement;
b. it is registered as a transfer agent pursuant to Section 17A of the Securities Exchange Act of 1934, as amended (the "1934 Act");
c. the arrangements provided for in this Agreement will be disclosed to the Plans through their representatives;
d. it will not be a "fiduciary" of any Plan as such term is defined in Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code");
e. the receipt of the fees described in Section 13 hereof by the Service Provider will not constitute a "prohibited transaction" as such term is defined in section 406 of ERISA and Section 4975 of the Code;
f. it is registered as a broker-dealer under the 1934 Act and any applicable state securities laws, or is not required to be so registered, including as a result of entering into and performing the services set forth in this Agreement; and
g. the Services will be performed by qualified personnel in accordance with the terms of this Agreement and highest industry standards.
Additional Representations, Warranties and Covenants. In addition to the continuing representations, warranties and covenants heretofore made in the Loan Agreement or otherwise and hereafter made by Borrower and Guarantors to Lender, whether pursuant to the Financing Agreements or otherwise, and not in limitation thereof, Borrower and Guarantors hereby represent, warrant and covenant with, to and in favor of Lender the following (which shall survive the execution and delivery of this Agreement), the truth and accuracy of which, or compliance with, to the extent such compliance does not violate the terms and provisions of the Bankruptcy Code, being a continuing condition of the making of loans by Lender:
7.1 This Thirteenth Ratification Amendment has been duly authorized, executed and delivered by Borrower and Guarantors and the agreements and obligations of Borrower and Guarantors contained herein constitute legal, valid and binding obligations of Borrower and Guarantors enforceable against Borrower and Guarantors in accordance with their respective terms.
7.2 The mortgages granted to Lender under the Mortgages constitute valid and perfected first priority mortgages on the Eligible Real Property subject thereto.
7.3 Borrower has good and marketable fee simple title to the Eligible Real Property, subject to no liens, mortgages, pledges, security interests, encumbrances or charges of any kind, nature or description.
7.4 Borrower and Guarantors shall execute and/or deliver to Lender all other Financing Agreements, and other agreements, documents and instruments, in form and substance satisfactory to Lender, which, in the good faith judgment of Lender are necessary or appropriate in connection with this Thirteenth Ratification Amendment;
7.5 Each of Borrower and Guarantors shall comply in full with the notice and other requirements of the Bankruptcy Code, the applicable Federal Rules of Bankruptcy Procedure, and the terms and conditions of the Final DIP Financing Order in a manner acceptable to Lender and its counsel;
7.6 No objection has been filed by any interested party to the terms and conditions of this Thirteenth Ratification Amendment and Borrower and Guarantors are authorized, in accordance with the terms of the Final DIP Financing Order, to execute, deliver, comply with and fully be bound by this Thirteenth Ratification Amendment; and
7.7 Except as set forth above, no Default or Event of Default exists or has occurred and is continuing as of the date hereof.
Additional Representations, Warranties and Covenants. The Debtor represents, warrants and covenants to the Bank that each of the following is true and will remain true until termination of this agreement and payment in full of all Liabilities: (a) the execution and delivery of this agreement and the performance of the obligations it imposes do not violate any law, do not conflict with any agreement by which it is bound, and do not require the consent or approval of any governmental authority or any third party; (b) this agreement is a valid and binding agreement, enforceable according to its terms; and (c) all balance sheets, profit and loss statements, and other financial statements furnished to the Bank in connection with the Liabilities are accurate and fairly reflect the financial condition of the organizations and persons to which they apply on their effective dates, including contingent liabilities of every type, which financial condition has not changed materially and adversely since those dates. The Debtor, other than a natural person, further represents that: (a) it is duly organized, validly existing and in good standing under the laws of the state where it is organized and in good standing in each state where it is doing business; and (b) the execution and delivery of this agreement and the performance of the obligations it imposes (i) are within its powers and have been duly authorized by all necessary action of its governing body; and (ii) do not contravene the terms of its articles of incorporation or organization, its by-laws, or any agreement or document governing its affairs.
Additional Representations, Warranties and Covenants. Each party represents that (a) it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with any other person, corporation or other entity and (b) it has full power and authority under applicable law, and has taken all action necessary, to enter into and perform this Agreement. Administrator further represents, warrants and covenants that:
(i) the arrangements provided for in this Agreement will be disclosed to the Customer Accounts through their representatives;
(ii) it will not be a “fiduciary” of any Benefit Plan with respect to the provision of the Administrative Services, the Services or with respect to a Benefit Plan’s purchase of Shares, as such term is defined in Section 3(21) of ERISA, and Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”);
(iii) it is either registered as or not required under applicable law to be registered as, a broker-dealer or a transfer agent under the 1934 Act or any applicable state securities laws, including as a result of entering into and performing the Services set forth in this Agreement; and
(iv) it has adopted and implemented internal controls reasonably designed to prevent instructions received from Beneficiaries or Customer Account Representatives on a given Business Day after the Close of Trading from being aggregated with the order for net purchases or net redemptions of Shares for that Business Day. Each Trust further represents, warrants and covenants that each Trust is registered as an investment company under the Investment Company Act of 1940, as amended, and its Shares are registered under the Securities Act.
