By Evergreen. Evergreen represents and warrants that: It is a corporation, duly organized, existing and in good standing under the laws of the State of Delaware; It has the power and authority under applicable laws and by its organizing documents to enter into and perform this Agreement; All requisite proceedings have been taken to authorize it to enter into and perform this Agreement; Each Trustis an investment company properly registered under the 1940 Act; A registration statement under the Securities Act of 1933, as amended (the “1933 Act”) and the 1940 Act has been filed and will be effective and remain effective for each Trust during the term of this Agreement. Evergreen also warrants that as of the effective date of this Agreement, all necessary filings under the securities laws of the states in which each Trust offers or sells its shares have been made; No legal or administrative proceedings have been instituted or threatened which would impair Evergreen’s ability to perform its duties and obligations under this Agreement; Its entrance into this Agreement will not cause a material breach or be in material conflict with any other agreement or obligation of Evergreen or any law or regulation applicable to it; and As of the close of business on the date of this Agreement, each Trust which is an open-end investment company is authorized to issue shares of beneficial interest.
By Evergreen. Evergreen hereby represents and warrants to Xxxxx that as of the Effective Date:
(i) Evergreen is duly organized and validly existing in good standing under the laws of the State of Delaware.
(ii) Evergreen has the requisite power and authority to enter into and perform its obligations under this Agreement.
(iii) This Agreement has been duly executed and delivered by Evergreen, and constitutes the legal, valid and binding obligations of Evergreen, enforceable against Evergreen in accordance with its terms.
(iv) The execution, delivery and performance of this Agreement by Evergreen and the consummation by Evergreen of the transactions contemplated hereby do not and will not (A) conflict with or result in a violation of the Certificate of Formation, Limited Liability Company Agreement or other organizational documents of Evergreen, (B) conflict with, violate or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Evergreen is a party or by which it or any of its material assets is bound or affected, or (C) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of applicable securities exchanges) applicable to Evergreen Signatory or by which any property or asset of Evergreen is bound or affected, except, in the case of subclause (B), such conflicts, defaults, rights, or violations that would not reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, assets, liabilities (contingent or otherwise) or prospects of Evergreen.
(v) Evergreen has obtained all consents, authorizations or orders of, or made all filings or registrations with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person required in order for such party to execute, deliver or perform any of its obligations under or contemplated by this Agreement in accordance with the terms hereof.
By Evergreen. Evergreen shall defend at its cost and expense, or at its option settle at its cost and expense any third party claim, suit or proceeding brought against PowerLight or its Affiliates on the issue that the PV Modules shipped hereunder infringe any copyright, patent, trade secret, trademark or service xxxx of any third party, and shall pay all damages awarded by a court of competent jurisdiction and amounts of approved, written settlements entered into in connection therewith, subject to the limitations set forth herein; but only if PowerLight or its Affiliates notifies Evergreen promptly in writing of such claim, suit or proceeding and gives Evergreen sole control of any defense or settlement negotiations or compromise, by counsel of its own reasonable choice, and, at Evergreen’s request and expense, gives Evergreen proper and reasonable information and assistance. Evergreen will not be liable for any settlement or negotiations made without its written consent and opportunity for Evergreen to participate therein. Evergreen shall not be liable to PowerLight under any provision of this Section 14(a) if any infringement proceeding or claim is based solely upon: (i) a use by PowerLight (or its customers) for which the PV Module was not designed, (ii) an alteration of the PV Module or combination of the PV Module with another item by PowerLight or a third party under PowerLight’s (or its customers’) direction, which alteration or combination has solely caused the infringement action, (iii) any materials or designs provided by PowerLight, or (iv) actions by PowerLight in violation of this Agreement. The foregoing states the sole and exclusive remedy of PowerLight and the entire liability of Evergreen for infringement of intellectual property rights by Evergreen or the PV Modules.
