Warranty Obligations
(a) Project Co represents, warrants and covenants that:
(i) the Works shall conform to the requirements of this Project Agreement, Good Industry Practice, Applicable Law and all professional engineering principles generally accepted as standards of the industry in the Province of Ontario;
(ii) the Works shall be free of defects, including design defects, errors and omissions; and
(iii) materials and equipment shall be of good quality and in compliance with this Project Agreement.
(b) During the Warranty Period and subject to Section 11.15(c), Project Co shall promptly, at its sole cost and expense, correct and Make Good all Construction Defects arising in respect of the Works. For greater certainty, Project Co is required to correct and Make Good Construction Defects related to any Product during the applicable Warranty Period despite Project Co having obtained on Contracting Authority’s behalf industry- standard or other equipment warranties in accordance with Section 11.15(f). For all work to correct Construction Defects, the applicable Warranty Period shall be extended for a further two years from the date of the last work completed in respect of such corrective Works. For clarity, any extension of a Warranty Period for the purposes of a correction shall only apply to the relevant Construction Defect and not the Works as a whole.
(c) In addition to the obligation to correct and Make Good Construction Defects during the Warranty Period, Project Co shall at its expense correct and Make Good any Construction Defects that could not reasonably have been ascertained by a competent person in accordance with Good Industry Practice during a visual inspection of the Works (“Construction Latent Defect”), provided Contracting Authority gives Project Co written Notice of the Construction Latent Defect within the time frame applicable to such Construction Latent Defect pursuant to the Limitations Act, 2002 (Ontario).
(d) The warranties described in this Section 11.15 shall cover labour and material, including, the costs of removal and replacement of covering materials. The warranties shall not limit extended warranties on any Product or item of equipment called for elsewhere in the Output Specifications or otherwise provided by any manufacturer of such Product or equipment.
(e) If Project Co fails to correct and Make Good any Construction Defects or Construction Latent Defects in accordance with Sections 11.15(b) and 11.15(c) and in the time period specified in Section 11.16(a) or Section 11.16(b), as applicable, without prejudice to any other right or remedy Contracting Authority may have, Contracting Authority may correct such Construction Defects or Construction Latent Defects at Project Co’s sole cost and expense.
(f) Project Co shall obtain warranties from the manufacturers of each of the Products for the duration(s) and in accordance with the applicable requirements specified in the Output Specifications in the name of and to the benefit of both Project Co and Contracting Authority. Where, in respect of a Product warranty, the Output Specifications do not specify a specific duration and/or other requirements, Project Co shall obtain industry-standard warranties from the applicable manufacturers in the name of and to the benefit of Project Co and Contracting Authority which shall extend no less than two years from the Substantial Completion Date. Each Product warranty shall be issued by the applicable manufacturer and delivered to Project Co no later than 30 days prior to the Substantial Completion Date. Project Co shall ensure that each Product warranty, including any Product warranty extended under this Section 11.15(f), is fully assigned to Contracting Authority, at no cost or expense to Contracting Authority, at the end of the Warranty Period, as such Warranty Period may be extended in accordance with Section 11.15(b).
Primary Obligations This Guaranty is a primary and original ------------------- obligation of Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional, and continuing guaranty of payment and performance which shall remain in full force and effect without respect to future changes in conditions until full and final payment in cash (or other consideration acceptable to Foothill in its sole discretion and agreed to by Foothill) of the Guarantied Obligations and the termination of all commitments of Foothill to extend Credit to Debtor or Guarantor. Guarantor agrees that it is directly, jointly and severally with any other guarantor of the Guarantied Obligations, liable to Guarantied Party, that the obligations of Guarantor hereunder are independent of the obligations of Debtor or any other guarantor, and that a separate action may be brought against Guarantor, whether such action is brought against Debtor or any other guarantor or whether Debtor or any other guarantor is joined in such action. Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by Guarantied Party of whatever remedies it may have against Debtor or any other guarantor, or the enforcement of any lien or realization upon any security Guarantied Party may at any time possess. Guarantor agrees that any release which may be given by Guarantied Party to Debtor or any other guarantor shall not release Guarantor. Guarantor consents and agrees that Guarantied Party shall be under no obligation to marshal any property or assets of Debtor or any other guarantor in favor of Guarantor, or against or in payment of any or all of the Guarantied Obligations.
Statutory Obligations Nothing in this Agreement shall be construed to modify, eliminate or detract from the statutory responsibilities and obligations of the Employer except that the exercise of its rights in the furtherance of such statutory obligations shall not be in conflict with the provisions of this Agreement.
Fiduciary Obligations The Executive agrees that Proprietary Information is of critical importance to the Company and a violation of this Section 8.02 and Section 8.03 would seriously and irreparably impair and damage the Company’s business. The Executive agrees that he shall keep all Proprietary Information in a fiduciary capacity for the sole benefit of the Company.
Primary Obligation This Agreement is a primary and original obligation of each Borrower and shall remain in effect notwithstanding future changes in conditions, including any change of law or any invalidity or irregularity in the creation or acquisition of any Obligations or in the execution or delivery of any agreement between Bank and any Borrower. Each Borrower shall be liable for existing and future Obligations as fully as if all of all Credit Extensions were advanced to such Borrower. Bank may rely on any certificate or representation made by any Borrower as made on behalf of, and binding on, all Borrowers, including without limitation Disbursement Request Forms, Borrowing Base Certificates and Compliance Certificates.
Breach of other obligations any Security Party commits any breach of or omits to observe any of its obligations or undertakings expressed to be assumed by it under any of the Security Documents (other than those referred to in clauses 10.1.1 and 10.1.2 above) unless such breach or omission, in the opinion of the Agent (following consultation with the Banks) is capable of remedy, in which case the same shall constitute an Event of Default if it has not been remedied within fifteen (15) days of the occurrence thereof; or
No Implied Obligations The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
Delivery Obligations (a) The Seller shall Deliver to the Purchaser, not later than the 5th Business Day following the Determination Date for each Lot (the “Delivery Deadline”), Finished Cobalt in an amount equal to the Payable Cobalt in respect of the Parcel from which such Lot was produced (the “Delivery Amount”); provided that where such Lot is comprised of Off-Spec Material, the Seller shall provide the Purchaser with prompt (and in any event prior to the initial Delivery Deadline) written notice (an “Off-Spec Material Notice”) of the existence of such Off-Spec Material and the Delivery Deadline for such Delivery Amount shall be as follows:
(i) to the extent that the Seller is able to Deliver some or all of the Delivery Amount using Finished Cobalt held on the date of the Off- Spec Material Notice by any Vale Affiliate in inventory in a Warehouse located in [REDACTED: Commercially Sensitive], the Delivery Deadline in respect of such portion of the Delivery Amount shall be not later than the 5th Business Day following the Determination Date for the relevant Lot;
(ii) thereafter, to the extent that the Seller is able to Deliver some or all of any remaining portion of the Delivery Amount using Finished Cobalt held on the date of the Off-Spec Material Notice by any Vale Affiliate in inventory in a Warehouse located in [REDACTED: Commercially Sensitive], the Delivery Deadline in respect of such portion of the Delivery Amount shall be not later than the 10th Business Day following the Determination Date for the relevant Lot; and
(iii) thereafter, in respect of the balance of the Delivery Amount (the “Delivery Balance”), if any, the Delivery Deadline shall be not later than the 15th Business Day following the Determination Date for the relevant Lot, subject to Section 2.2(c). Notwithstanding the foregoing, to the extent that the Seller grants or has granted a permitted Stream Equivalent Transaction required to be settled in physical cobalt to any Person other than the Purchaser, the Seller shall use its available Finished Cobalt inventory (and any other Finished Cobalt that it is able to acquire) to satisfy its delivery obligations to the Purchaser and to such other Person(s) proportionately to their respective cobalt stream percentages or similar interests in cobalt.
(b) The Seller shall ensure that the Vale Affiliates maintain, at all times, an inventory of at least [REDACTED: Commercially Sensitive] tonnes of Finished Cobalt ([REDACTED: Commercially Sensitive]) in one or more Warehouses located in [REDACTED: Commercially Sensitive], provided that where the Vale Affiliates have drawn on such inventory of Finished Cobalt to meet the Seller’s Delivery obligations to the Purchaser in accordance with Section 2.2(a)(i) and any other permitted Stream Equivalent Transactions granted by the Seller that are required to be settled in physical cobalt, the Vale Affiliates shall have up to 45 days after the date of the relevant Delivery to restore such inventory of Finished Cobalt to at least [REDACTED: Commercially Sensitive] tonnes. Notwithstanding the foregoing, the Vale Affiliates shall not be required to maintain any inventory of Finished Cobalt for so long as any increase to the Stream Percentage in accordance with Section 5.3 is in effect.
(c) [REDACTED: Commercially Sensitive].
(d) No later than 15 Business Days following the end of each calendar quarter, the Seller shall conduct an updated Metal Balance Determination in respect of all Lots in respect of which Deliveries of Finished Cobalt were made (or required to be made) by the Seller to the Purchaser in accordance with Section 2.2(a) within such calendar quarter and shall determine the quantity of Minerals processed at Long Harbour over the period of processing attributed to such Lots (the “Quarterly Parcel”). The Seller shall calculate the Payable Cobalt in respect of such Quarterly Parcel as if it were a Parcel and to the extent that the aggregate Payable Cobalt in respect of the Quarterly Parcel is greater or less than the Finished Cobalt actually Delivered (or required to be Delivered) by the Seller to the Purchaser during such calendar quarter in respect of such Lots, the Seller shall (subject to Section 2.2(e)) reduce or increase, as the case may be, the amount of the next following Delivery of Finished Cobalt (the “Subject Delivery”) to account for such difference (a “Delivery Adjustment”); provided that:
(i) where the amount of such Subject Delivery is required to be increased by an amount of Finished Cobalt (the “Top-Up Amount”) pursuant to a Delivery Adjustment, the Top-Up Amount shall be calculated in accordance with the following formula: Top-Up Amount = A x (B/C) where: “A” is the number of pounds of Finished Cobalt by which (a) the number of pounds of Payable Cobalt calculated in respect of the Quarterly Parcel exceeds (b) the Finished Cobalt actually Delivered (or required to be Delivered) to the Purchaser during the relevant calendar quarter;
Seller Obligations Seller shall (A) arrange and pay independently for any and all necessary costs under any Generator Interconnection Agreement with the Participating Transmission Owner; (B) cause the Interconnection Customer’s Interconnection Facilities, including metering facilities, to be maintained; and (C) comply with the procedures set forth in the GIP and applicable agreements or procedures provided under the GIP in order to obtain the applicable Electric System Upgrades and (D) obtain Electric System Upgrades, as needed, in order to ensure the safe and reliable delivery of Energy from the Project up to and including quantities that can be produced utilizing all of the Contract Capacity of the Project.
Liability of Seller; Indemnities The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Owner Trustee, the Issuer, the Trustee and the Trust Collateral Agent and their respective officers, directors, employees and agents from and against any taxes that may at any time be asserted against any such Person with respect to the transactions or activities contemplated in this Agreement and any of the Basic Documents (except any income taxes arising out of fees paid to the Owner Trustee, the Trust Collateral Agent and the Trustee and except any taxes to which the Owner Trustee, the Trust Collateral Agent or the Trustee may otherwise be subject to, without regard to the transactions contemplated hereby), including any sales, gross receipts, general corporation, tangible or intangible personal property, privilege or license taxes (but, in the case of the Issuer, not including any taxes asserted with respect to, federal or other income taxes arising out of distributions on the Notes) and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer, the Owner Trustee, the Trustee and the Trust Collateral Agent and the officers, directors, employees and agents thereof and the Noteholders from and against any loss, liability or expense incurred by reason of (i) the Seller’s willful misfeasance, bad faith or negligence in the performance of its duties under this Agreement, or by reason of reckless disregard of its obligations and duties under this Agreement and (ii) the Seller’s or the Issuer’s violation of federal or state securities laws in connection with the offering and sale of the Notes.
(c) The Seller shall indemnify, defend and hold harmless the Issuer, the Owner Trustee, Trustee and the Trust Collateral Agent and the officers, directors, employees and agents thereof from and against any and all costs, expenses, losses, claims, damages and liabilities arising out of, or incurred in connection with the acceptance or performance of the trusts and duties set forth herein and in the Basic Documents except to the extent that such cost, expense, loss, claim, damage or liability shall be due to the willful misfeasance, bad faith or negligence (except for errors in judgment) of the Owner Trustee, Trustee or the Trust Collateral Agent, respectively. Indemnification under this Section shall survive the resignation or removal of the Owner Trustee, the Trustee or the Trust Collateral Agent and the termination of this Agreement or the Indenture or the Trust Agreement, as applicable, and shall include reasonable fees and expenses of counsel and other expenses of litigation. If the Seller shall have made any indemnity payments pursuant to this Section and the Person to or on behalf of whom such payments are made thereafter shall collect any of such amounts from others, such Person shall promptly repay such amounts to the Seller, without interest.
