By the Partnership In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Partnership will indemnify and hold harmless each Selling Holder participating therein, its directors, officers, employees and agents, and each Person, if any, who controls such Selling Holder within the meaning of the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), and its directors, officers, employees or agents, against any losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or several, to which such Selling Holder, director, officer, employee, agent or controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus or any Written Testing-the-Waters Communication, in the light of the circumstances under which such statement is made) contained in any Written Testing-the-Waters Communication, a Registration Statement, any preliminary prospectus or prospectus supplement, free writing prospectus or final prospectus or prospectus supplement contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or any Written Testing-the-Waters Communication, in the light of the circumstances under which they were made) not misleading, and will reimburse each such Selling Holder, its directors, officers, employee and agents, and each such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings as such expenses are incurred; provided, however, that the Partnership will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Selling Holder, its directors, officers, employees and agents or such controlling Person in writing specifically for use in any Written Testing-the-Waters Communication, a Registration Statement, or prospectus or any amendment or supplement thereto, as applicable. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder or any such directors, officers, employees agents or controlling Person, and shall survive the transfer of such securities by such Selling Holder.
Manager 5.1. Rules relating to the rights, duties and responsibilities of the Managers shall be governed by the Act. Such provisions are hereinafter incorporated into this Agreement by reference. Without limiting the generality of the foregoing, the Manager shall have the powers set forth in Paragraph 5.3 below.
By Owner Owner may suspend the Project upon seven (7) days written notice to Engineer.
By Sellers Sellers covenant and agree to defend, indemnify and hold harmless Purchaser, its Affiliates and the officers, directors, employees, agents, advisers and representatives of each such Person (collectively, the "Purchaser Indemnitees") from and against, and pay or reimburse the Purchaser Indemnitees for, any and all claims, liabilities, obligations, losses, fines, costs, royalties, proceedings, deficiencies or damages (whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims), including out-of-pocket expenses and reasonable attorneys' and accountants' fees incurred in the investigation or defense of any of the same or in asserting any of their respective rights hereunder (collectively, "Losses"), resulting from or arising out of:
(i) any inaccuracy of any representation or warranty made by any Seller herein, or in any certificate delivered by an officer of any Seller pursuant hereto (a "Seller Certificate") or in any Collateral Agreement or in connection herewith or therewith;
(ii) any failure of any Seller to perform any covenant or agreement hereunder or under any Collateral Agreement or fulfill any other obligation in respect hereof or of any Collateral Agreement;
(iii) any and all Retained Liabilities or Retained Assets;
(iv) any and all Taxes (other than payroll Taxes) of any Seller and all Affiliates thereof relating to or arising out of the Business accruing, or with respect to any event or time period occurring, at or prior to Closing; and
(v) any and all liabilities in respect of employees of Seller or its Affiliates or Plans except to the extent assumed by Purchaser pursuant to Section 4.3. Cap on Sellers' Indemnification Obligations. Sellers' obligation to indemnify Purchaser Indemnitees pursuant to this Agreement, any Seller Certificate or any Collateral Agreement for breaches or inaccuracies of representations or warranties, and for breaches or failures to perform covenants or agreements or to fulfill any other obligations set forth in this Agreement (except for (x) the Seller Surviving Covenants, and (y) solely to the extent expressly contemplated by this Section 8.9(a), the Environmental Covenants (as defined in this Section 8.9(a))), in any Seller Certificate or in any Collateral Agreement, shall not exceed the amount of funds held in the Escrow Account at the time such claims
Performance by the Purchaser The Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Initial Closing and as of each Settlement Date.
Partnership Property All property, real, personal, tangible, intangible, or mixed, acquired by or contributed to the Partnership shall be owned by the Partnership and titled in its name and such property shall not be owned individually by any Partner. Each Partner acknowledges and agrees that the System and all elements thereof, are the exclusive property of the Company and are not Partnership property. Each Partner acknowledges and agrees that the Proprietary Marks are the exclusive property of the Company and are not Partnership property. Each Partner acknowledges and agrees that the Partnership shall not acquire or own any land or buildings. Any land or buildings used in the Partnership business shall be acquired and owned by the Company or an Affiliate of the Company and leased to the Partnership at reasonable rates and terms, and such land and buildings shall not be Partnership property.
By the Parties Except as specifically provided in this SCIA, modifications of this SCIA shall not be effective unless agreed to in writing by both Parties in an amendment to this SCIA.
Owner Participant The Owner Participant agrees, solely for the benefit of the Lessee, the Pass Through Trustee, the Indenture Trustee and the Owner Trustee, that if at any time when the Aircraft is registered or the Lessee proposes to register the Aircraft in the United States (i) it shall cease to be, or believes itself likely to cease to be, a Citizen of the United States and (ii) the Aircraft shall or would therefore become ineligible for registration in the name of the Owner Trustee under the Transportation Code and regulations then applicable thereunder, then the Owner Participant shall give notice thereof to the Lessee and the Indenture Trustee and shall (at its own expense and without any reimbursement or indemnification from the Lessee) immediately (and in any event within a period of 15 days) (x) effect a voting trust or other similar arrangement, (y) transfer in accordance with the terms of this Agreement and the Trust Agreement all its rights, title and interest in and to such Trust Agreement, the Lessor's Estate and this Agreement, or (z) take any other alternative action that would prevent any deregistration, or maintain the United States registration, of the Aircraft. It is agreed that the Owner Participant shall be liable to pay promptly on request (A) to each of the other parties hereto and to each Holder any damages actually suffered by any such other party or Holder as the result of the representation and warranty of the Owner Participant in the first sentence of Section 7.02(a) hereof proving to be untrue as of the Delivery Date; and (B) to the Lessee, the Indenture Trustee and the Pass Through Trustee for any damages actually incurred by the Lessee, the Indenture Trustee and the Pass Through Trustee as a result of the Owner Participant's failure to comply with its obligations pursuant to the first sentence of this Section 7.02(c). Each party hereto agrees, upon the request and at the sole expense of the Owner Participant, to cooperate with the Owner Participant in complying with its obligations under the provisions of the first sentence of this Section 7.02(c).
By the Trust The Trust represents and warrants that:
1. It is duly organized, existing and in good standing under the laws of the jurisdiction in which it was formed;
2. It has the power and authority under applicable laws and by its organizational documents to enter into and perform this Agreement;
3. All requisite proceedings have been taken to authorize it to enter into and perform this Agreement;
4. With respect to each Portfolio, it is an investment company properly registered under the 1940 Act;
5. A registration statement under the 1940 Act (and if Shares of the Portfolio are offered publicly, under the Securities Act of 1933, as amended (the “1933 Act”)) has been filed and will be effective and remain effective during the term of this Agreement. The Trust also warrants that as of the effective date of this Agreement, all necessary filings under the securities laws of the states in which the Trust offers or sells its Shares have been made;
6. No legal or administrative proceedings have been instituted or threatened which would impair the Trust’s ability to perform its duties and obligations under this Agreement;
7. Its entrance into this Agreement will not cause a material breach or be in material conflict with any other agreement or obligation of the Trust or any law or regulation applicable to it; and
8. As of the close of business on the date of this Agreement, the Trust is authorized to issue its Shares.
Title to Partnership Property All property owned by the Partnership, whether real or personal, tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner, individually, shall have any ownership of such property. The Partnership shall hold its assets in its own name, except that its interests in Leases may be held in the name of the Program Manager as contemplated by the Program Agreement.
