General Representations. The Governmental Lender makes the following (a) The Governmental Lender is a public body corporate and politic, organized and existing under the laws of the State, has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto. (b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws). (c) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect. (d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Notes. (e) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.
Appears in 2 contracts
Samples: Funding Loan Agreement, Funding Loan Agreement
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party, as of the Effective Date, as follows:
(a) The Governmental Lender Such Party is a public body corporate an entity duly organized, validly existing and politic, organized and existing in good standing under the laws Laws of the Statejurisdiction of its incorporation or formation, has is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender NotesAgreement; CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating theretoAS AMENDED.
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate action and does not and will not (i) violate any provision of any Law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws or other organizational or governing documents; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement has been duly executed and is a legal, valid and binding obligation of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at Law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all authorizations, consents and approvals, governmental or in violation ofotherwise, and necessary for the execution and delivery of the Funding Loan Documents this Agreement, and to which it is otherwise perform such Party’s obligations under this Agreement;
(f) Neither Party, nor any of its Affiliates, are a party and its compliance to, or are otherwise bound by, any oral or written contract that will result in any Third Party obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other Party’s rights under this Agreement;
(g) Neither Party, or, to the knowledge of such Party, any Third Party acting by or on behalf of such Party in connection with the terms manufacture, development or commercialization of the Compound, Product or any Licensed Product has been debarred or is subject to debarment, and conditions thereof will not conflict neither Party shall knowingly engage or constitute a default under use any Third Party in connection with the of the manufacture, development or a violation ofcommercialization of the Compound, (i) Product or any Licensed Product that has been debarred; each Party agrees to notify the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to Party in writing promptly if it, or (iii) to its knowledgeif it has knowledge that, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes licensors or bonds other than any entity acting on its behalf in any capacity in connection with the Funding Loan as evidenced by manufacture, development or commercialization of the Governmental Lender Notes.Compound, Product or any Licensed Product, is debarred or becomes the subject of any threatened or pending action, suit, claim, investigation, legal or administrative proceeding relating to debarment; and
(eh) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election Such Party shall perform its obligations hereunder in accordance with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFall Laws.
Appears in 2 contracts
Samples: License Agreement (Braeburn Pharmaceuticals, Inc.), License Agreement (Braeburn Pharmaceuticals, Inc.)
General Representations. The Governmental Lender makes the following
(a) The Governmental Lender is a public body corporate and politic, organized and existing under the laws of the State, has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan Loan, and apply the proceeds of such obligation or loan to finance the Project Project, and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such the Funding Loan Documents and all other agreements and instruments relating theretoto which it is a party.
(b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions on its part contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the best knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or with respect to which the Governmental Lender has been served with process or, to the knowledge of the Governmental Lender, is threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan Agreement as evidenced by the Governmental Lender Notes.
(e) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR THE BORROWER LOAN, OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.
Appears in 2 contracts
Samples: Funding Loan Agreement, Funding Loan Agreement
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as follows:
(a) The Governmental Lender Such Party is a public body corporate corporation (or, in the case of Aqua, a limited liability company) duly organized, validly existing and politic, organized and existing is in good standing under the laws of the Statejurisdiction of its incorporation or formation, has is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Agreement;
(b) The Governmental Lender execution, delivery and performance of this Agreement by such Party has been duly authorized by all necessary corporate action and do not and will not (i) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement has been duly executed and is a legal, valid and binding obligation of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement, nor shall such Party undertake any such obligation during the Agreement Term;
(e) Except with regard to the matters set forth in Article 1A, such Party has obtained all authorizations, licenses, permits, consents and approvals, governmental or in violation ofotherwise, and necessary for the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan this Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing otherwise perform such Party’s obligations under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).this Agreement;
(cf) To the knowledge Except for any assignment of the Governmental Lenderthis Agreement permitted by Section 10.2 (or agreement executed to effect such an assignment), no litigationneither Party, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure nor any of its notes Affiliates, are a party to, or bonds are otherwise bound by, any oral or written agreement that will result in any person or entity obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other than the Funding Loan as evidenced by the Governmental Lender Notes.Party’s rights under this Agreement; and
(eg) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election Such Party shall perform its obligations hereunder in accordance with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFall applicable Laws.
Appears in 1 contract
General Representations. The Governmental Lender makes Shipowner’s hereby represents and warrants that the followingfollowing are true statements as of the date hereof and further warrants that they shall remain true thereafter:
(a1) The Governmental Lender the Shipowner’s is a public body corporate duly organized, validly existing and politic, organized and existing in good standing under the laws of the Statejurisdiction designated in the initial paragraph of the Special Provisions hereof and shall maintain such existence. The Shipowner’s has not failed to qualify to do business in any jurisdiction in the United States in which its business or properties require such qualification, and had and has the full legal right, power and authority to own its own properties and assets and conduct its business as it is presently conducted;
(i2) the Shipowner’s had and has legal power and authority to enter into and carry out the Funding Loan terms of the Guarantee Commitment, the Construction Contract, Bond Purchase Agreement, Obligations, Indenture, Security Agreement, Secretary’s Note, Mortgage, Financial Agreement, and Depository Agreement (the “Documents”);
(3) each of the Documents has been duly authorized, executed and delivered by the Shipowner’s and constitutes, in accordance with its respective terms, legal, valid and binding instruments enforceable against the Shipowner’s, except to which it is a party and the extent limited by applicable bankruptcy, reorganization, insolvency, moratorium or similar laws of general application relating to or affecting the enforcement of creditors rights as from time to time in effect;
(4) the consummation of the transactions contemplated thereby, (ii) incur the limited obligation represented by and compliance by the Governmental Lender Notes and the Funding Loan and apply the proceeds Shipowner’s of such obligation or loan to finance the Project and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.
(b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof provisions of the Documents will not conflict violate any provisions of the formation documents of the Shipowner’s and will not result in a breach of the terms and provisions of, or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, agreement or (iii) to its knowledge, undertaking by the provisions Shipowner or by which the Shipowner’s is bound or any order of any agreements and instruments court or administrative agency entered into in any proceedings to which the Governmental Lender Shipowner’s is or has been a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, ; and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c5) To the knowledge of the Governmental Lender, there is no litigation, inquiry proceeding or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against or, to the Governmental Lender with respect to (i) the organization and existence best of the Governmental LenderShipowner’s knowledge, (ii) its authority to execute threatened, involving the Shipowner’s or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes property which could prevent or bonds other than jeopardize the Funding Loan as evidenced performance by the Governmental Lender Notes.
(e) The California Debt Limit Allocation Committee has provided an allocation Shipowner’s of its obligations under the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.Documents;
Appears in 1 contract
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party, as of the Execution Date and the Effective Date, as follows:
(a) The Governmental Lender Such Party is a public body corporate corporation duly organized, validly existing and politic, organized and existing is in good standing under the laws of the Statejurisdiction of its incorporation, has is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Agreement;
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate action and do not and will not (i) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement has been duly executed and is a legal, valid and binding obligation of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all authorizations, consents and approvals, governmental or in violation ofotherwise, and necessary for the execution and delivery of the Funding Loan Documents this Agreement, and to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default otherwise perform such Party’s obligations under or a violation of, this Agreement;
(f) Except (i) with respect to Indevus, for any rights of Mxxxxx under the Act, Mxxxxx License (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) Indevus, for any rights of Supernus under the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a partySupernus Agreement, (iii) the validity with respect to Esprit, for any rights of Allergan, Inc., neither Party, nor any of its Affiliates, are a party to, or enforceability are otherwise bound by, any oral or written contract that will result in any Third Party obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of any such Funding Loan Documents Party’s or the transactions contemplated thereby, (iv) the title other Party’s rights under this Agreement; and Confidential treatment has been requested for portions of any officer this document. This copy of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating document filed as an Exhibit omits the confidential information subject to the execution confidentiality request. Omissions are designated by the symbol [...***...]. A complete version of this document has been provided separately to the Securities and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effectExchange Commission.
(dg) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of Such Party shall perform its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Notesobligations hereunder in accordance with all Laws.
(e) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as follows as of the Termination Effective Date:
(a) The Governmental Lender Such Party is a public body corporate company duly organized, validly existing and politic, organized and existing in good standing under the laws of the Statejurisdiction of its incorporation or organization, has is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of have such obligation or loan to finance the Project and (iii) carry out would not prevent such Party from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating theretoTermination Agreement.
(b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it This Termination Agreement is a party legal and valid obligation binding upon such Party and enforceable in accordance with its compliance with the terms terms. The execution, delivery and conditions thereof performance of this Termination Agreement by such Party have been duly authorized by all necessary corporate action and do not and will not not: (i) require any consent or approval of its stockholders; (ii) to such Party’s knowledge, violate any Applicable Laws; nor (iii) conflict with, or constitute a default under or a violation of, (i) the Act, (ii) to its knowledgeunder, any other existing lawsagreement, rulesinstrument or understanding, regulationsoral or written, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it such Party is a party or consummating by which it is bound, except for any conflicts or defaults that (A) would not prevent such Party from performing its obligations under this Termination Agreement, (B) would not prevent the transactions contemplated therebyother Party from exercising its rights under this Termination Agreement, and, to its knowledge, no event has occurred and is continuing under (C) would not adversely affect the provisions conveyance of any such agreement or instrument or otherwise that with all right title and interest in the lapse of time Transferred Assets or the giving grant of noticerights and licenses hereunder. In particular, or bothand without limiting the generality of the foregoing, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as each Party represents and warrants to the necessity of registering other Party that it is fully entitled to grant the Governmental Lender Notes or releases, enter into the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws)covenants, and undertake the obligations set forth herein. * CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(c) To the knowledge of the Governmental LenderSuch Party has not sold, no litigationassigned, inquiry conveyed, pledged, encumbered, or investigation of otherwise in any kind in or way transferred to any Person any Claim released by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect such Party pursuant to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effectthis Termination Agreement.
(d) The revenues Such Party has not filed, and receipts has no actual knowledge, that any Third Party has filed, any legal or administrative proceeding of any kind or nature against the other Party relating to be derived from the Borrower Loan Restated Agreement (including the Original Agreement), the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by Claims filed in the Governmental Lender NotesLitigation.
(e) Such Party is not relying in any manner on any statement, promise, representation or omission, whether oral or written, express or implied, made by any Person or entity, not specifically set forth in this Termination Agreement.
(f) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 Parties acknowledge that they have worked together and participated on joint committees with respect to the issue date Compound and Product during the term of the Governmental Lender Notes; andOriginal Agreement and Restated Agreement, and in connection therewith, has directed Tax Counsel therewith have from time to include time exchanged information concerning the information on Form 8038 filed for development and commercialization of the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFCompound and Product.
Appears in 1 contract
Samples: Termination and Transition Agreement (Xenoport Inc)
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as of the Effective Date and Closing Date as follows:
(a) The Governmental Lender Such Party is a public body corporate an entity duly organized, validly existing and politic, organized and existing in good standing under the laws Laws of the Statejurisdiction of its incorporation or formation, has is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Ancillary Agreements;
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement and the Ancillary Agreements have been duly authorized by all necessary corporate action and does not and will not (i) violate any provision of any Law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws or other organizational or governing documents; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement and the Ancillary Agreements have been duly executed and are legal, valid and binding obligations of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at Law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement or in violation ofany Ancillary Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all authorizations, consents and approvals, governmental or otherwise, necessary for the execution and delivery of this Agreement and the Funding Loan Documents Ancillary Agreements, and to which it is otherwise perform such Party’s obligations under this Agreement and the Ancillary Agreements;
(f) Neither Party, nor any of its Affiliates, are a party and its compliance to, or are otherwise bound by, any oral or written contract that will result in any Third Party obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other Party’s rights under this Agreement or any Ancillary Agreement;
(g) Neither Party, or, to the knowledge of such Party, any Third Party acting by or on behalf of such Party in connection with the terms manufacture, development or commercialization of the Compound, Product, Semi-Finished Product or any Final Product has been debarred or is subject to debarment, and conditions thereof will not conflict neither Party shall knowingly engage or constitute a default under use any Third Party in connection with the of the manufacture, development or a violation ofcommercialization of the Compound, (i) Product, Semi-Finished Product or any Final Product that has been debarred; each Party agrees to notify the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to Party in writing promptly if it, or (iii) to its knowledgeif it has knowledge that, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes licensors or bonds other than any entity acting on its behalf in any capacity in connection with the Funding Loan as evidenced by manufacture, development or commercialization of the Governmental Lender Notes.Compound, Product, Semi-Finished Product or any Final Product, is debarred or becomes the subject of any threatened or pending action, suit, claim, investigation, legal or administrative proceeding relating to debarment; and
(eh) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election Such Party shall perform its obligations hereunder in accordance with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFall Laws.
Appears in 1 contract
Samples: Asset Purchase, Supply and Support Agreement (Titan Pharmaceuticals Inc)
General Representations. The Governmental Lender makes the followingI represent, acknowledge and agree that:
(a) The Governmental Lender is a public body corporate and politic, organized and existing Securities have not been registered under the laws Securities Act of 1933, as amended (the “Act”), and are being offered pursuant to the exemption provided by Section 4(2) of the State, has the power and authority to Act (i) enter into the Funding Loan Documents to which it is for a party and the transactions contemplated thereby, (ii) incur the limited obligation represented transaction by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Notesan issuer not involving any public offering), and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating theretoRule 506 of Regulation D thereunder.
(b) The Governmental Lender is Securities have not in default been registered or qualified under the securities law of my state of residence and are being offered under an exemption from registration or in violation ofqualification under the securities laws of my state; and that the offer, sale and the execution and delivery issuance of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will Securities have not conflict been registered or constitute a default qualified under or a violation of, (i) the Act, (ii) to its knowledge, any other existing lawsstate securities laws and if offered in other states, rules, regulations, judgments, decrees may only be issued and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes sold pursuant to any securities laws or complying with any other requirements of securities laws).applicable exemptions in such states;
(c) To the knowledge of the Governmental LenderThe Securities are being purchased by me for my own account, no litigation, inquiry for investment only and not with a view toward resale or investigation of distribution thereof to any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lenderother person, and no such authority I am not participating, directly or proceedings have been repealedindirectly, revoked, rescinded in any underwriting or amended but are in full force and effect.distribution;
(d) The revenues None of the Securities purchased by me shall be sold or otherwise transferred contrary to the provisions of this Subscription Agreement or any federal or state securities law, and receipts to I understand that unless the Securities are subsequently registered under the Act, they may not in any event be derived sold or transferred except by a valid exemption from registration under the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Notes.Act;
(e) Any and all certificates representing the Securities purchased and any and all securities issued in replacement thereof or in exchange thereof shall bear the following legend or one substantially similar thereto, which I have read and understand: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD, OR TRANSFERRED FOR VALUE WITHOUT EITHER REGISTRATION UNDER THOSE LAWS OR THE FURNISHING OF AN OPINION OF COUNSEL SATISFACTORY TO COUNSEL FOR THE COMPANY THAT TO DO SO WOULD NOT VIOLATE THE REGISTRATION PROVISIONS OF SUCH LAWS.”
(f) The California Debt Limit Allocation Committee Company shall have the right to issue stop transfer instructions on its official stock records, and I acknowledge that the Company has provided an allocation informed me of its intention to issue such instructions:
(g) There is currently no trading market in the Securities of the State’s 2016 private activity bond volume cap under section 146 Company, and the Company presently has no plans to register the Securities, so that there may never be a public trading market for the Securities, with consequent possible indefinite illiquidity of the Code Securities;
(h) At no time has it been explicitly or implicitly represented, guaranteed or warranted to me by the Company, its management, the agents or employees of the Company, the selling agent or any other person: (i) that I will be able to transfer the Securities on any particular date; (ii) that if and when I may wish to transfer the Securities, such securities will be validly transferable under federal and applicable state securities laws; (iii) that I will realize any percentage or amount of profit, gain or other consideration as a result of any investment I have made or will make in the Company; or (iv) that I or other shareholders will receive any dividends or other distributions from the Company at any time;
(i) Investment in the Securities is a long-term speculative investment which involves a substantial risk of loss to me of my entire investment; that I take full cognizance of and responsibility for the risks related to the Governmental Lender purchase of the Securities; I have no need for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election liquidity with respect to my investment either now or within the foreseeable future; and I can bear a complete loss of my investment without undue hardship to me or my family;
(j) I and my purchaser representative, if any, have been afforded an opportunity to examine such allocation. The Governmental Lender hereby elects documents and obtain such information, including the Company’s financial statements, concerning the Company as I may have requested, and I have had the opportunity to apply the alternative option under clause (2) request such other information and ask questions of the first paragraph officers and directors of Section 3.01 the Company (and all information so requested has been provided) for the purpose of IRS Notice 2011-63 verifying the information furnished to me and for answering any question I may have had concerning the business, prospects and affairs of the Company;
(k) I understand and acknowledge that any projections, financial forecasts which may likely prove to be incorrect in view of the early stage of the Company’s development; and no assurance has been given to me that actual results will correspond in any meaningful way with respect the results contemplated by the various projections, financial forecasts or predictions; and
(l) I have been advised to consult with my own investment adviser, attorney, and accountant regarding the Company’s prospects and legal and tax matters, concerning an investment in the Company, and have done so, to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel extent I consider that to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFbe necessary.
Appears in 1 contract
Samples: Subscription Agreement (mCig, Inc.)
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as of the Effective Date and Closing Date as follows:
(a) The Governmental Lender Such Party is a public body corporate an entity duly organized, validly existing and politic, organized and existing in good standing under the laws Laws of the Statejurisdiction of its incorporation or formation, has is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Ancillary Agreements;
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement and the Ancillary Agreements have been duly authorized by all necessary corporate action and does not and will not (i) violate any provision of any Law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws or other organizational or governing documents; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement and the Ancillary Agreements have been duly executed and are legal, valid and binding obligations of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at Law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement or in violation ofany Ancillary Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all material authorizations, consents and approvals, governmental or otherwise, necessary for the execution and delivery of this Agreement and the Funding Loan Documents Ancillary Agreements, and to which it otherwise perform such Party’s obligations under this Agreement and the Ancillary Agreements;
(f) Such Party, and each of its Affiliates, is not a party and its compliance with the terms and conditions thereof will not conflict to, or constitute a default under or a violation of, (i) the Act, (ii) to its knowledgeare otherwise bound by, any other existing laws, rules, regulations, judgments, decrees and orders applicable to itoral or written contract that will result in any Third Party obtaining any interest in, or (iii) that would give to its knowledgeany Third Party any right to assert any claim in or with respect to, the provisions any of any agreements and instruments to which the Governmental Lender is a party, a default under such Party’s or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party Party’s rights under this Agreement or consummating the transactions contemplated thereby, any Ancillary Agreement; and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(cg) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind Such Party shall perform its obligations hereunder in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender accordance with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are all Laws in full force and effectall material respects.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Notes.
(e) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.
Appears in 1 contract
Samples: Asset Purchase Agreement (Titan Pharmaceuticals Inc)
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as of the Execution Date as follows:
(a) The Governmental Lender is a public body corporate and politic, organized and existing under the laws of the State, Such Party has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation been represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds independent legal counsel of such obligation or loan to finance the Project and (iii) carry out its other obligations under own choosing in connection with this Funding Loan Agreement and the Governmental Lender NotesTermination Agreement, and by proper action has duly authorized had adequate opportunity to consult with such counsel prior to the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating theretoof this Termination Agreement.
(b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it This Termination Agreement is a party legal and valid obligation binding upon such Party and enforceable in accordance with its compliance with the terms terms. The execution, delivery and conditions thereof performance of this Termination Agreement by such Party have been duly authorized by all necessary corporate action and do not and will not not: (i) require any consent or approval of its stockholders; (ii) to such Party’s knowledge, violate any Applicable Laws, order, writ, judgment, decree, determination or award of any court, governmental body or administrative or other agency having jurisdiction over such Party; nor (iii) conflict with, or constitute a default under or a violation of, (i) the Act, (ii) to its knowledgeunder, any other existing lawsagreement, rulesinstrument or understanding, regulationsoral or written, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it such Party is a party or consummating by which it is bound. In particular, and without limiting the transactions contemplated therebygenerality of the foregoing, and, to its knowledge, no event has occurred each Party represents and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as warrants to the necessity of registering other Party that it is fully entitled to grant the Governmental Lender Notes or releases, enter into the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws)covenants, and undertake the obligations set forth herein.
(c) To the knowledge of the Governmental LenderSuch Party has not sold, no litigationassigned, inquiry conveyed, pledged, encumbered, or investigation of otherwise in any kind in or way transferred to any Person any Claim released by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect such Party pursuant to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effectthis Termination Agreement.
(d) The revenues and receipts to be derived from Such Party has not filed, or is not aware that any Third Party has filed, any legal or administrative proceeding of any kind or nature against the Borrower Loan Agreementother Party, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by Claims filed in the Governmental Lender NotesLitigation.
(e) The California Debt Limit Allocation Committee has provided an allocation Such Party is not relying in any manner on any statement, promise, representation or omission, whether oral or written, express or implied, made by any person or entity, not specifically set forth in this Termination Agreement
(f) Other than this Termination Agreement, the Subordination Agreement, the Terminated Agreements, the Revance Equity Rights Agreements, the Series C Preferred Stock Purchase Agreement, the Series D Preferred Stock Purchase Agreement, and the Stipulation and Order Governing the Production and Exchange of Highly Confidential Information entered by the Chancery Court of the State’s 2016 private activity bond volume cap under section 146 State of Delaware on July 5, 2012 (collectively, the “Existing Agreements”), there are no other agreements, contracts or other legally binding commitments existing as of (or immediately prior to) the Execution Date between the Parties or their Affiliates. If any such other agreements contracts or commitments exist as of the Code to Execution Date (i.e., other than the Governmental Lender for Existing Agreements), such other agreements, contracts and commitments shall be deemed terminated as of the Governmental Lender NotesTermination Effective Date. For clarity, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information agreements listed on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFSchedule 5.1 shall not terminate.
Appears in 1 contract
Samples: Settlement and Termination Agreement (Revance Therapeutics, Inc.)
General Representations. The Governmental Lender makes Seller represents and warrants to Buyer as of the followingEffective Date that:
(ai) The Governmental Lender Seller is a public body corporate and politic, duly organized and validly existing as a limited liability company under the laws of the StateState of Delaware, and has the lawful power to engage in the business it presently conducts and contemplates conducting in this Agreement and Seller is duly qualified in each jurisdiction wherein the nature of the business transacted by it makes such qualification necessary;
(ii) Seller has the legal power and authority to (i) enter into the Funding Loan Documents make and carry out this Agreement and to which it is a party perform its obligations hereunder and the transactions contemplated thereby, (ii) incur the limited obligation represented all such actions have been duly authorized by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and all necessary proceedings on its part;
(iii) carry out this Agreement has been duly and validly executed and delivered by Seller and, as of the Effective Date, constitutes a legal, valid and binding obligation of Seller, enforceable in accordance with its terms against Seller, except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally or by general principles of equity;
(iv) there are no actions, suits, proceedings or investigations pending or, to the knowledge of Seller, threatened in writing against Seller or its Affiliates, at law or in equity before any Governmental Authority, which individually or in the aggregate are reasonably likely to have a materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of Seller, or to result in any impairment of Seller’s ability to perform its obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Agreement;
(bv) The Governmental Lender is not in default under or in violation ofthe execution, delivery and the execution and delivery performance of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof this Agreement by Seller will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to with its knowledgegoverning documents, any other existing laws, rules, regulations, judgments, decrees and orders applicable to itApplicable Laws, or (iii) to its knowledgeany covenant, the provisions of any agreements and instruments agreement, understanding, decree or order to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it Seller is a party or consummating by which it is bound or affected;
(vi) there is no proceeding under applicable bankruptcy or insolvency law contemplated by Seller or, to Seller’s knowledge, threatened against it;
(vii) neither it nor any of its employees, agents, or representatives have offered or given, or will offer or give, any gratuities to Buyer’s employees, agents or representatives for the purpose of securing the Agreement or securing favorable treatment under this Agreement;
(viii) Seller or its Affiliates have or will have all legal rights necessary for the Seller to enter upon and occupy the Site for the purpose of constructing, operating and maintaining the Facility for the Term. Seller shall maintain all leases or other land grants necessary for the construction, operation and maintenance of the Facility as valid for the Term; and
(ix) Seller or its Affiliate have engaged those professional or other experts it reasonably believes necessary to understand its rights and obligations pursuant to this Agreement. All professionals or experts including engineers, attorneys or accountants, that Seller or its Affiliate may have consulted or relied on in undertaking the transactions contemplated thereby, and, to its knowledge, no event has occurred by this Agreement have been solely those of Seller or such Affiliate. In entering into this Agreement and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the knowledge undertaking by Seller of the Governmental Lenderobligations set forth in this Agreement, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization Seller has investigated and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which determined that it is a partycapable of performing under this Agreement and has not relied upon the advice, (iii) the validity experience or enforceability expertise of any such Funding Loan Documents or Buyer in connection with the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effectby this Agreement.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Notes.
(e) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.
Appears in 1 contract
Samples: Power Purchase Agreement
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party as of the Execution Date as follows:
(a) The Governmental Lender is a public body corporate and politic, organized and existing under the laws of the State, Such Party has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation been represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds independent legal counsel of such obligation or loan to finance the Project and (iii) carry out its other obligations under own choosing in connection with this Funding Loan Agreement and the Governmental Lender NotesTermination Agreement, and by proper action has duly authorized had adequate opportunity to consult with such counsel prior to the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating theretoof this Termination Agreement.
(b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it This Termination Agreement is a party legal and valid obligation binding upon such Party and enforceable in accordance with its compliance with the terms terms. The execution, delivery and conditions thereof performance of this Termination Agreement by such Party have been duly authorized by all necessary corporate action and do not and will not not: (i) require any consent or approval of its stockholders; (ii) to such Party’s knowledge, violate any Applicable Laws, order, writ, judgment, decree, determination or award of any court, governmental body or administrative or other agency having jurisdiction over such Party; nor (iii) conflict with, or constitute a default under or a violation of, (i) the Act, (ii) to its knowledgeunder, any other existing lawsagreement, rulesinstrument or understanding, regulationsoral or written, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it such Party is a party or consummating by which it is bound. In particular, and without limiting the transactions contemplated therebygenerality of the foregoing, and, to its knowledge, no event has occurred each Party represents and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as warrants to the necessity of registering other Party that it is fully entitled to grant the Governmental Lender Notes or releases, enter into the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws)covenants, and undertake the obligations set forth herein.
(c) To the knowledge of the Governmental LenderSuch Party has not sold, no litigationassigned, inquiry conveyed, pledged, encumbered, or investigation of otherwise in any kind in or way transferred to any Person any Claim released by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect such Party pursuant to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effectthis Termination Agreement.
(d) The revenues and receipts to be derived from Such Party has not filed, or is not aware that any Third Party has filed, any legal or administrative proceeding of any kind or nature against the Borrower Loan Agreementother Party, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by Claims filed in the Governmental Lender NotesLitigation.
(e) The California Debt Limit Allocation Committee has provided an allocation Such Party is not relying in any manner on any statement, promise, representation or omission, whether oral or written, express or implied, made by any person or entity, not specifically set forth in this Termination Agreement
(f) Other than this Termination Agreement, the Subordination Agreement, the Terminated Agreements, the Revance Equity Rights Agreements, the Series C Preferred Stock Purchase Agreement, the Series D Preferred Stock Purchase Agreement, and the Stipulation and Order Governing the Production and Exchange of Highly Confidential Information entered by the Chancery Court of the State’s 2016 private activity bond volume cap under section 146 State of Delaware on July 5, 2012 (collectively, the “Existing Agreements”), there are no other agreements, contracts or other legally binding commitments existing as of (or immediately prior to) the Execution Date between the Parties or their Affiliates. If any such other EXECUTION VERSION agreements contracts or commitments exist as of the Code to Execution Date (i.e., other than the Governmental Lender for Existing Agreements), such other agreements, contracts and commitments shall be deemed terminated as of the Governmental Lender NotesTermination Effective Date. For clarity, the Governmental Lender has timely made any required carry forward election with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information agreements listed on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFSchedule 5.1 shall not terminate.
Appears in 1 contract
Samples: Settlement and Termination Agreement
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party, as of the Effective Date, as follows:
(a) The Governmental Lender Such Party is a public body corporate an entity duly organized, validly existing and politic, organized and existing in good standing under the laws of the Statejurisdiction of its incorporation or formation, has is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Agreement;
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate action and does not and will not (i) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws or other organizational or governing documents; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement has been duly executed and is a legal, valid and binding obligation of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all authorizations, consents and approvals, governmental or in violation ofotherwise, and necessary for the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan this Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing otherwise perform such Party’s obligations under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).this Agreement;
(cf) To the knowledge of the Governmental LenderNeither Party, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure nor any of its notes Affiliates, are a party to, or bonds are otherwise bound by, any oral or written contract that will result in any Third Party obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other than the Funding Loan as evidenced by the Governmental Lender Notes.Party’s rights under this Agreement; and
(eg) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election Such Party shall perform its obligations hereunder in accordance with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFall Laws.
Appears in 1 contract
Samples: License, Development and Commercialization Agreement (MetaStat, Inc.)
General Representations. The Governmental Lender makes Each Party hereby represents and warrants to the followingother Party, as of the Execution Date and the Effective Date, as follows:
(a) The Governmental Lender Such Party is a public body corporate corporation duly organized, validly existing and politic, organized and existing is in good standing under the laws of the Statejurisdiction of its incorporation, has is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the power conduct of its business or the ownership of its properties requires such qualification and authority failure to (i) enter into the Funding Loan Documents to which have such would prevent it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Notes and the Funding Loan and apply the proceeds of such obligation or loan to finance the Project and (iii) carry out from performing its other obligations under this Funding Loan Agreement and the Governmental Lender Notes, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto.Agreement;
(b) The Governmental Lender execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate action and do not and will not (i) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter or bylaws; or (ii) conflict with or constitute a default under any other agreement to which such Party is a party;
(c) This Agreement has been duly executed and is a legal, valid and binding obligation of such Party, enforceable against it in accordance with the terms and conditions hereof, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at law;
(d) Such Party is not under any obligation to any person or entity, contractual or otherwise, that is in default under conflict with the terms of this Agreement, nor will such Party undertake any such obligation during the Agreement Term;
(e) Such Party has obtained all authorizations, consents and approvals, governmental or in violation ofotherwise, and necessary for the execution and delivery of the Funding Loan Documents this Agreement, and to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default otherwise perform such Party’s obligations under or a violation of, this Agreement;
(f) Except (i) with respect to Indevus, for any rights of Xxxxxx under the Act, Xxxxxx License (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Notes, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Notes or the Borrower Notes pursuant to any securities laws or complying with any other requirements of securities laws).
(c) To the knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Governmental Lender with respect to (i) Indevus, for any rights of Supernus under the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a partySupernus Agreement, (iii) the validity or enforceability with respect to Esprit, for any rights of any such Funding Loan Documents or the transactions contemplated therebyAllergan, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental LenderInc., and no such authority or proceedings have been repealedneither Party, revoked, rescinded or amended but are in full force and effect.
(d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Notes and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure nor any of its notes Affiliates, are a party to, or bonds are otherwise bound by, any oral or written contract that will result in any Third Party obtaining any interest in, or that would give to any Third Party any right to assert any claim in or with respect to, any of such Party’s or the other than the Funding Loan as evidenced by the Governmental Lender Notes.Party’s rights under this Agreement; and
(eg) The California Debt Limit Allocation Committee has provided an allocation of the State’s 2016 private activity bond volume cap under section 146 of the Code to the Governmental Lender for the Governmental Lender Notes, the Governmental Lender has timely made any required carry forward election Such Party shall perform its obligations hereunder in accordance with respect to such allocation. The Governmental Lender hereby elects to apply the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Governmental Lender Notes; and, in connection therewith, has directed Tax Counsel to include the information on Form 8038 filed for the Governmental Lender Notes that is required by section 3.03 of said Notice. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOFall Laws.
Appears in 1 contract