Authority; No Breach By Agreement (a) NDC has the corporate power and authority necessary to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein, including the Merger, have been duly and validly authorized by all necessary corporate action in respect thereof on the part of NDC. This Agreement represents a legal, valid, and binding obligation of NDC, enforceable against NDC in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors' rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought).
Authorization; No Breach; Valid and Binding Agreement The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions have been duly and validly authorized by all requisite corporate or organizational action, and no other proceedings on the part of the Stockholders or the Company are necessary to authorize the execution, delivery or performance of this Agreement. Except as set forth on Schedule 3.02 of the Disclosure Schedules, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions does not and will not (a) conflict with, constitute a default under, result in a breach or violation of, (i) any provision of the Acquired Companies’ certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents, or (ii) the provision of any Law or Governmental Order applicable to any Acquired Company; (b) require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any (i) Material Contract or (ii) any Permit affecting the properties, assets or business of the Acquired Companies; or (c) result in the creation or imposition of any Lien (other than Permitted Liens) upon any properties or assets of any of the Acquired Companies, except with respect to clauses (a)(ii), (b)(ii) and (c) above, to the extent such conflict, default, breach, violation, acceleration, termination, modification, cancellation or Lien would not be material to the Acquired Companies taken as a whole. This Agreement has been duly executed and delivered by the Company and, assuming that this Agreement is a valid and binding obligations of Purchaser and Merger Sub, constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether considered in a proceeding in equity or at law). No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to the Acquired Companies in connection with the execution, delivery and performance of this Agreement and the Transactions, except for (x) the filing of the Certificate of Merger with the Secretary of State of Delaware and (y) such consents, approvals, Permits, Governmental Orders, declarations or filings with or notices to, any Governmental Authority, the absence of which would not individually or in the aggregate be material to the Acquired Companies. All corporate actions taken by the Company in connection with this Agreement will be duly authorized on or prior to the Closing.
Authorization; No Breach (i) This Agreement constitutes a valid and binding obligation of the Purchaser, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or law).
No Breach of Material Contracts The Target has performed all of the material obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in default in respect of any contract, except where the failure to so perform or the failure to be entitled to all benefits or such default would not have a Material Adverse Effect on Target. Each of the Material Contracts is in full force and effect, and there exists no default or event of default or event, occurrence, condition or act, with respect to Target or to Target's knowledge with respect to the other contracting party, or otherwise that, with or without the giving of notice, the lapse of the time or the happening of any other event or conditions, could reasonably be expected to (A) become a default or event of default under any Material Contract, which default or event of default could reasonably be expected to have a Material Adverse Effect on Target or (B) result in the loss or expiration of any material right or option by Target (or the gain thereof by any third party) under any Material Contract or (C) result in the release, disclosure or delivery to any third party of any part of the Source Materials (as defined in Section 2.26(m)). True, correct and complete copies of all Material Contracts have been made available or delivered to the Acquiror.
Inconsistencies with Other Documents; Independent Effect of Covenants (a) In the event there is a conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall control; provided, that any provision of the Security Documents which imposes additional burdens on the Borrower or its Subsidiaries or further restricts the rights of the Borrower or its Subsidiaries or gives the Administrative Agent or Lenders additional rights shall not be deemed to be in conflict or inconsistent with this Agreement and shall be given full force and effect.
No Breach, Etc No party shall, nor shall any party permit any of its subsidiaries to, willfully take any action that would or is reasonably likely to result in a material breach of any provision of this Agreement or in any of its representations and warranties set forth in this Agreement being untrue on and as of the Closing Date.
Authority; No Breach It has the corporate or other organizational right, power and authority to enter into, and perform its obligations under, this Agreement. The execution, delivery and performance of this Agreement will not result in the breach or non-performance of any agreements it has with third parties.
SURVIVAL OF COVENANTS/SUPERSESSION All covenants, agreements, representations and warranties made herein and in or pursuant to the Initial Purchase Agreement and each Additional Purchase Agreement executed pursuant to these Master Terms shall survive the consummation of the acquisition of the Purchased Loans provided for in the related Purchase Agreement. All covenants, agreements, representations and warranties made or furnished pursuant hereto by or on behalf of SLM ECFC shall bind and inure to the benefit of any successors or assigns of Funding and the Interim Eligible Lender Trustee on behalf of Funding and shall survive with respect to each Purchased Loan. Each Purchase Agreement supersedes all previous agreements and understandings between Funding and SLM ECFC with respect to the subject matter thereof. These Master Terms and any Purchase Agreement may be changed, modified or discharged, and any rights or obligations hereunder may be waived, only by a written instrument signed by a duly authorized officer of the party against whom enforcement of any such waiver, change, modification or discharge is sought. The waiver by Funding of any covenant, agreement, representation or warranty required to be made or furnished by SLM ECFC or the waiver by Funding of any provision herein contained or contained in any Purchase Agreement shall not be deemed to be a waiver of any breach of any other covenant, agreement, representation, warranty or provision herein contained, nor shall any waiver or any custom or practice which may evolve between the parties in the administration of the terms hereof or of any Purchase Agreement, be construed to lessen the right of Funding to insist upon the performance by SLM ECFC in strict accordance with said terms.
Severability of Covenants/Blue Pencilling If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portions. If any court determines that any of the Restrictive Covenants, or any part thereof, are unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. Executive hereby waives any and all right to attack the validity of the Restrictive Covenants on the grounds of the breadth of their geographic scope or the length of their term.
Breach by Seller In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations, or (b) pursue the remedy of specific performance of Seller’s obligations under this Agreement; provided, however, that (i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the default by Seller, (B) Purchaser is not in default under this Agreement beyond any applicable notice and cure period, (C) Purchaser has tendered an amount equal to three percent (3%) of the Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
