By the Issuer. The Issuer hereby represents and warrants to the OF Manager and Note Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has the corporate power to own its property and to carry on its business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and performance of this agreement and any Note does not and will not violate its Constitution;
By the Issuer. The Issuer hereby represents and warrants to the OF Manager and Note Holder that:
(a) (Due Incorporation): it is duly incorporated and has the corporate power to own its property and to carry on its business as is now being conducted;
(b) (Constitution): the execution delivery and performance of this agreement and any Note does not and will not violate its constitution;
(c) (Corporate Power): it has the power and has taken all corporate and other action required to enter into this agreement and each Note and to authorise the execution and delivery of this agreement and each Note and the performance of its obligations thereunder;
(d) (Filings): it has filed all corporate notices and effected all registrations with the Australian Securities and Investments Commission or similar office in the jurisdiction of incorporation and in any other jurisdiction as required by law and all such filings and registrations are current, complete and accurate except:
(1) as such enforceability may be limited by any applicable bankruptcy, insolvency, re-organisation, moratorium or trust or other similar laws affecting creditors’ rights generally; and
(2) that this representation and warranty does not apply to the filing of ASIC form 309 or ASIC form 350 in relation to the creation and stamping of the Charge (as defined in the Security Trust Deed);
(e) (Legally Binding Obligation): this agreement and each Note constitutes or will constitute a valid, legally binding and enforceable obligation of it in accordance with its terms except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganisation, moratorium or trust laws or other similar laws affecting creditors' rights generally;
(f) (Execution, Delivery and Performance): the execution, delivery and performance of this agreement and each Note by it does not violate any existing law or regulation or any document or agreement to which it is a party in either case in its capacity as trustee of the Securitisation Fund or which is binding upon it or any of its assets in its capacity as trustee of the Securitisation Fund;
(g) (Authorisation): all consents, licences, approvals and authorisations of every Governmental Agency required to be obtained by it in connection with the execution and delivery of, and performance of its obligations under, this agreement and any Note have been obtained and are valid and subsisting;
(h) (Securitisation Fund Validly Created): the Securitisation Fund has been validly c...
By the Issuer the Issuer shall, upon presentation of duly documented evidence, indemnify each Agent against any loss, liability, cost, claim, action, demand or expense (including, but not limited to, all costs, charges and expenses paid or properly incurred in disputing or defending any of the foregoing) that it may incur or that may be made against it directly arising out of or in relation to or in connection with its appointment or the exercise of its functions, other than by reason of the Agent’s own material breach of any of its undertakings and agreements of this Agreement, its own negligence, fraud or wilful default or that of its officers, employees or agents.
By the Issuer. The Issuer shall indemnify and hold harmless, to the extent permitted by law, each holder of Registrable Securities, such holder’s officers, directors employees, agents and representatives, and each Person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (the “Indemnified Parties”) against all losses, claims, actions, damages, liabilities and expenses (including with respect to actions or proceedings, whether commenced or threatened, and including reasonable attorney fees and expenses) caused by, resulting from, arising out of, or are based upon: (i) any untrue or alleged untrue statement of material fact contained in (A) any registration statement, prospectus, preliminary prospectus or Free Writing Prospectus, or any amendment thereof or supplement thereto, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Issuer of the Securities Act or state securities laws or any rule or regulation promulgated thereunder applicable to the Issuer and relating to action or inaction required of the Issuer in connection with any such registration. In addition, the Issuer will reimburse such Indemnified Party for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such losses. Notwithstanding the foregoing, the Issuer shall not be liable in any such case to the extent that any such losses result from, arise out of, are based upon, or relate to an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus, preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto, in reliance upon, and in conformity with, written information prepared and furnished in writing to the Issuer by such Indemnified Party expressly for use therein or by such Indemnified Party’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Issuer has furnished such Indemnified Party with a sufficient number of copies of the same. In connection with an underwritten offering, the Issuer shall indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided ab...
By the Issuer. The ISSUER may terminate this Agreement:
(i) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and fails to request a written extension of that date from the ISSUER. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has passed. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER.
(ii) If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 above, termination under this subsection shall be effective upon XXXX'x receipt of written notification of termination from the ISSUER. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER.
(iii) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and the ISSUER has withheld a written extension of that date, this agreement may be terminated. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER.
(iv) If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER notifies the ESCO in writing that it ha...
By the Issuer. Each of the following events or conditions shall constitute an "Event of Default" by the ISSUER:
(1) any willful action by the ISSUER that prevents the ESCO from meeting their obligations as set forth in Schedule I “Construction and Installation Schedule;
(2) any failure by the ISSUER to pay the ESCO any sum due for the Annual Services for more than thirty (30) days after written notification by ESCO that ISSUER is delinquent in making payment and provided that no ESCO Event of Default, as provided in Section (dd)(ii) hereof, has occurred and is continuing at such time;
(3) any other material failure by the ISSUER to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein, provided that such failure continues for thirty (30) days after notice to the ISSUER demanding that such failures to perform be cured or if such cure cannot be effected in thirty (30) days, the ISSUER shall be deemed to have cured default upon the commencement of a cure within thirty (30) days and diligent subsequent completion thereof; or
(4) any representation or warranty furnished by the ISSUER in this Agreement, which was false, or misleading in any material respect when made.
By the Issuer. The Issuer shall indemnify each Agent and their respective directors, officers and employees against any Losses which it may incur or which may be made against it arising out of or in connection with its appointment or the exercise of its functions under this Agreement, except as may result from its wilful misconduct or gross negligence or that of its directors, officers or employees.
By the Issuer. By the Issuer, upon written notice to the Issuer, is any representation or warranty made in this Agreement by the Purchaser shall have been false or incorrect in any material respect when made or shall have become false or incorrect in any material respect thereafter, or if the Purchaser shall fail to perform or observe any material covenant or agreement made by it in this Agreement; or
By the Issuer. The Issuer shall indemnify each Agent against any losses, liabilities, costs, claims, actions, demands or expenses (including, but not limited to, all reasonable costs, legal fees, charges and expenses paid or incurred in disputing or defending any of the foregoing) which it may incur or which may be made against any Agent as a result of or in connection with its appointment or the exercise of its powers and duties hereunder except such as may result from its own wilful default, negligence or bad faith or that of its officers, directors or employees or the material breach by it of the terms of this Agreement. Notwithstanding the foregoing, under no circumstances will the Issuer be liable to any of the Agents or any other party to this Agreement for any consequential loss (being loss of business, goodwill, opportunity or profit), even if advised of the possibility of such loss or damage. In case any action shall be brought against any of the Agents in respect of which indemnity may be sought from the Issuer, such Agent shall promptly notify the Issuer in writing and shall employ such legal advisers as may be agreed between them or, in default of such agreement, as such Agent may reasonably select. The Issuer shall not be liable in respect of any settlement of any such action effected without its consent, such consent not to be unreasonably withheld or delayed.
By the Issuer. Except as provided in Article IV of this Agreement, the Issuer will not sell, lease, assign, transfer, convey or otherwise dispose of its interest in the Facilities or any portion thereof or interest therein or in the revenues therefrom without the written consent of the Company, nor will it create or suffer to be created any debt, lien or charge thereon, not consented to by the Company, except Permitted Encumbrances.
