Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder; (c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets; (d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with; (e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law; (f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction; (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise; (h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks; (i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction; (j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party; (k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder; (l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder; (m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26). (n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties. (o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 53 contracts
Samples: Renewable Energy Credit Agreement, Renewable Energy Credit Agreement, Renewable Energy Credit Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other that, as of the Effective Date and covenants that at all times during the Term, it will ensure that:
(a) it It is a legal entity duly organized and created, validly existing and is in good standing under the laws of the jurisdiction of in which it is created, and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its incorporation business or organizationits ability to perform its obligations under this Agreement;
(b) It has all necessary legal power and authority to own, lease and operate its assets and to carry on its business as presently conducted and as it will be conducted pursuant to this Agreement;
c) It has the all necessary legal power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all necessary actions on its part;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this This Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid and bindingbinding obligation of such Party, enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fe) no Event of DefaultIt is not a party to, or Potential Event of Default, has occurred and is continuingnot bound or affected by or subject to, and none will occur any instrument, agreement, charter or by-law provision, law, rule, regulation, judgment or order which would be contravened or breached as a result of its entering into or performing the execution of this Agreement or any Transaction;
(g) it is not relying upon any representations the consummation of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) transactions contemplated hereunder;
(lf) there It is no not the subject of any pending or threatened litigation (including claims subject to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator arbitration) that is likely to materially adversely affect the ability of either would prevent such Party to perform from performing its obligations hereunder;under this Agreement; and
(mg) it It is in compliance with all applicable laws, rules, orders, regulations and other legal requirements in effect as the same may relate in a “forward contract merchant” within material way to each of its respective businesses and provision or use of the meaning Services. All such representations, warranties and covenants shall continue during the Term of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within if, at any time, any event has occurred that would make any of the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”foregoing representations or warranties not true, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to such Party shall promptly notify the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;writing.
Appears in 13 contracts
Samples: Services Agreement, Services Agreement, Services Agreement (World Monitor Trust III - Series J)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 8 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Execution Date and on each Trade Delivery Date, each Party represents and warrants to the other that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) it has the power and authority to enter into this Agreement and all Governmental Approvals necessary for it to perform its obligations hereunderunder this Agreement, except on the Execution Date only for (i) CPUC Approval in the case of Buyer, and (ii) all permits necessary to install, operate and maintain the Project in the case of Seller;
(c) its execution the execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it;
(d) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(e) it is not Bankrupt and there are no proceedings pending or affecting being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(f) there is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or perform its assetsobligations under this Agreement;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fg) no Event of Default, or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(gh) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability recommendations of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement; and
(i) it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take Delivery of the Product, as provided in this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 6 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, that:
17.1.1 it is (ai) an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, and (ii) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
17.1.8 it has entered into the Transaction Documents and will enter into any transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) it has not received from the other Party Transaction Documents and any assurancetransaction, guarantee or promise as to understands and accepts the expected or projected successterms, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderconditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder;
(l) there 17.1.10 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.11 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 6 contracts
Samples: Inventory Intermediation Agreement (PBF Finance Corp), Inventory Intermediation Agreement (PBF Finance Corp), Inventory Intermediation Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date that:
(a) it 7.1.1 such Party is duly organized organized, validly existing, and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the full corporate power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 7.1.2 execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) the performance by such Party of its obligations hereunder are have been duly authorized;
7.1.3 this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid and bindingvalid, binding obligation, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawthe terms hereof;
(f) no Event 7.1.4 the performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement by it does not create a breach or default under any Transaction;
(g) other agreement to which it is not relying upon any representations of the other Party other than those expressly set forth hereina party, and it is acting for its own account, and not as agent which breach or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by default would adversely affect the other Party;
(k) it has 7.1.5 the execution, delivery, and performance of this Agreement by such Party does not received from the other Party conflict with any assuranceagreement, guarantee instrument, or promise as understanding, oral or written, to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within party or by which it is bound, nor violate any Law of any court, governmental body or administrative or other agency having jurisdiction over such Party;
7.1.6 no government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Laws currently in effect, is or will be necessary for, or in connection with, the meaning transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, or for the performance by it of United States Bankruptcy Code §101(26), and its obligations under this Agreement and all Transactions hereunder constitute “forward contracts” within such other agreements, except as may be required under the meaning Stock Purchase Agreement, to obtain HSR Act clearance (as further described in Section 4.1.6), or applicable Regulatory Approvals or Regulatory Filings related to the Development, Commercialization, or manufacture of Collaboration Compounds or Licensed Products; and
7.1.7 such Party has not employed and, to its knowledge, has not used a contractor or consultant that has employed, any individual or entity (i) debarred by the FDA (or subject to a similar sanction of EMEA or other applicable Regulatory Authority), (ii) who is the subject of an FDA debarment investigation or proceeding (or similar proceeding of EMEA or other applicable Regulatory Authority), or (iii) has been charged with or convicted under United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it Law for conduct relating to the other Party development or approval, or otherwise relating to the regulation of any Licensed Product under the Generic Drug Enforcement Act of 1992, in connection with this Agreement are trueeach case, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;conduct of its activities prior to the Effective Date.
Appears in 6 contracts
Samples: Collaboration and Option Agreement (Globeimmune Inc), Collaboration and Option Agreement (Globeimmune Inc), Collaboration and Option Agreement (Globeimmune Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 5 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the date hereof, that:
(a) it is duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation and has the full corporate power and authority to execute, deliver and perform this Agreement, and to consummate the transactions contemplated hereby;
(b) it has the power execution, delivery and authority to enter into performance of this Agreement and to perform the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on its obligations hereunderpart;
(c) this Agreement has been duly executed and delivered and constitutes its execution legal, valid, and performance do not violate or conflict binding obligations enforceable against it in accordance with Applicable Law, any provision the terms of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsthis Agreement;
(d) all governmental the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing performance of this Agreement have been obtained and the consummation of the transactions contemplated hereby do not (i) violate (A) any law or submitted any governmental rule or regulation applicable to it, in any material respect, (B) memorandum and are articles of incorporation, bylaws or other charter or organizational documents, or (C) any material order, judgment or decree of any court, governmental body or administrative or other agency having jurisdiction over it; or (ii) conflict with, result in full force and effect and all conditions thereof have been complied witha breach of or constitute a default under any contract or agreement to which it is a party or by which it is bound;
(e) no consent, approval or authorization of or from any third party, including any governmental entity, whether prescribed by law, regulation, contract or agreement, is required in order for its obligations hereunder are legalexecution or delivery of this Agreement to be effective, valid except for such filings with the U.S. Securities and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally Exchange Commission as may be required under Sections 13 and subject16 of the Securities Exchange Act of 1934, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;amended; and
(f) there is no Event of Defaultaction, suit, proceeding, inquiry or investigation before or by any governmental entity or any self-regulatory organization or body pending or, to its knowledge, threatened against or affecting it that challenges, or Potential Event may have the effect of Defaultpreventing, has occurred and is continuingdelaying, and none will occur as a result of its entering into making illegal, or performing otherwise interfering with, this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinagreements, instruments and it is acting for its own account, documents executed and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending delivered or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) be executed and delivered by it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 4 contracts
Samples: Share Purchase Agreement (Givolon LTD), Share Purchase Agreement (Glencore International Ag), Call Option Agreement (Glencore International Ag)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Crude Oil hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into this Agreement (including any internal authorizations, approvals and performing consents required by such Party under its organizational documents) have been obtained or submitted and are in full force and effect, and all conditions of this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 it is in good standing under the laws of each jurisdiction in which it is required to perform under this Agreement, and all governmental and other authorizations, approvals, consents, notices, licenses and filings that are required to have been obtained or submitted by it in order to perform under this Agreement under the Applicable Laws of each relevant jurisdiction have been obtained or submitted and are in full force and effect;
17.1.7 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.8 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.9 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.10 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.11 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.12 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.13 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.14 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Crude Oil hereunder who is entitled to any compensation with respect thereto; and
17.1.15 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 4 contracts
Samples: Crude Oil Acquisition Agreement (PBF Energy Inc.), Crude Oil Acquisition Agreement (PBF Energy Inc.), Crude Oil Acquisition Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatother, as of the Effective Date, as follows:
(a) it such Party is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization, and has all requisite power and authority, corporate or organization;otherwise, to execute, deliver and perform this Agreement; [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(b) it has the power execution and authority to enter into delivery of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorized by all necessary corporate action and will not violate: (i) such Party’s certificate of incorporation or bylaws, (ii) any agreement, instrument or contractual obligation to perform which such Party is bound in any material respect, (iii) any requirement of any Applicable Laws, or (iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(c) this Agreement is a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms and conditions;
(d) such Party is not under any obligation, contractual or otherwise, to any person or entity that conflicts with or is inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder;
(ce) its execution and performance do not violate or conflict with Applicable Lawto such Party’s knowledge, any provision all of its constituent documentsemployees, or any contract binding on or affecting it or any officers, contractors, and consultants have executed agreements requiring assignment to such Party of its assets or any order or judgment all Inventions made during the course of any Governmental Authority applicable and as a result of their association with such Party and obligating each such employee, officer, contractor, and consultant to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, maintain as to enforceability, to equitable principles confidential the Confidential Information of general application regardless of whether enforcement is sought in a proceeding in equity or at law;such Party; and
(f) no Event of Defaultneither such Party, or Potential Event of Default, has occurred and is continuing, and none will occur as a result nor any of its entering into employees, officers, subcontractors or performing this Agreement consultants who have rendered or any Transaction;
(g) it is not relying upon any representations of will render services relating to the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
Product: (i) it has ever been debarred (or is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Partiesdebarment) or convicted of a crime for which an entity or person could be debarred under 21 U.S.C. Section 335a or its foreign equivalent or (ii) has ever been under indictment for a crime for which a person or entity could be debarred under any such provision.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: License Agreement (Coherus BioSciences, Inc.), License Agreement (Coherus BioSciences, Inc.), License Agreement (Coherus BioSciences, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other Party as of the Execution Date, and with respect to each Transaction as of the Trade Date and Delivery Date, that:
(a) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the its jurisdiction of its incorporation organization or organizationincorporation;
(b) it has the corporate, governmental, regulatory, and other legal capacity, and power to execute and authority to enter into deliver this Agreement Agreement, and to perform its obligations hereunder;
(c) its execution the execution, delivery, and performance do of this Agreement has been authorized by all necessary action on its part, including obtaining all authorizations or approvals from Governmental Authorities pursuant to all Laws, and will not violate result in any breach of or conflict with Applicable Law, default under any term or provision of its constituent documentsany other agreement, instrument, judgment, decree, order, statute, rule or any contract binding on governmental regulation to which it is otherwise a party or affecting by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsmay be bound;
(d) all there is not pending, or to its knowledge threatened, against it, any action, suit or proceeding at law or in equity before any court, governmental and other authorizationsbody, approvalsagency, consents, notices and filings or any arbitrator that are required is likely to have been obtained or submitted by it with respect materially adversely affect its ability to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withperform its obligations hereunder;
(e) this Agreement constitutes its obligations hereunder are legal, valid and binding, binding obligation enforceable against it in accordance with their respective its terms, subject to applicable except as may be limited by bankruptcy or similar laws any law affecting the enforcement of creditors’ rights generally and subject, as to enforceability, subject to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawapplication;
(f) no Event it is an “Eligible Contract Participant” as defined in Section 1a(18) of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionthe Commodity Exchange Act;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into this Agreement and each transaction Transaction and as to whether such transaction or not this Agreement and each Transaction is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability recommendations of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with so doing, is capable of assessing the merits of this Agreement are trueand each Transaction, accurate and complete in every material understands and accepts the terms, conditions, and risks of this Agreement and each Transaction; and
(h) no Event of Default with respect and do not omit a material fact that would otherwise make the information, document to itself has occurred or statement misleading;is continuing.
Appears in 3 contracts
Samples: Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other Party as of the Execution Date, and with respect to each Transaction as of the Trade Date and Delivery Date, that:
(a) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the its jurisdiction of its incorporation organization or organizationincorporation;
(b) it has the corporate, governmental, regulatory, and other legal capacity, and power to execute and authority to enter into deliver this Agreement Agreement, and to perform its obligations hereunder;
(c) its execution the execution, delivery, and performance do of this Agreement has been authorized by all necessary action on its part, including obtaining all authorizations or approvals from Governmental Authorities pursuant to all Laws, and will not violate result in any breach of or conflict with Applicable Law, default under any term or provision of its constituent documentsany other agreement, instrument, judgment, decree, order, statute, rule or any contract binding on governmental regulation to which it is otherwise a party or affecting by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsmay be bound;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it there is not relying upon any representations of the other Party other than those expressly set forth hereinpending, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigationthreatened, arbitration against it, any action, suit or administrative proceeding at law or in equity before any Governmental Authority court, governmental body, agency, or any arbitrator that is likely to materially adversely affect the its ability of either Party to perform its obligations hereunder;
(me) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by bankruptcy or any law affecting the enforcement of creditors’ rights generally and subject to equitable principles of general application;
(f) it is an “Eligible Contract Participant” as defined in Section 1a(18) of the Commodity Exchange Act;
(g) it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code §101(26)Code;
(h) it is acting for its own account, and has made its own independent decision to enter into this Agreement and all Transactions hereunder constitute “forward contracts” within each Transaction and as to whether or not this Agreement and each Transaction is appropriate or proper for it based upon its own judgment, is not relying upon the meaning advice or recommendations of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with so doing, is capable of assessing the merits of this Agreement are trueand each Transaction, accurate and complete in every material understands and accepts the terms, conditions, and risks of this Agreement and each Transaction; and
(i) no Event of Default with respect and do not omit a material fact that would otherwise make the information, document to itself has occurred or statement misleading;is continuing.
Appears in 3 contracts
Samples: Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement
Mutual Representations and Warranties. On the Effective Date Buyer and on Seller each Trade Date, each Party represents and warrants to the other as of the Effective Date, the Delivery Commencement Date and as of each Delivery that:
(ai) it There are no suits, proceedings, judgments, ruling or orders pending, or to its Knowledge, threatened, by or before any court or any Governmental Authority that materially and adversely affect its ability to perform, or the rights of the other Party, under this Agreement.
(ii) It is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) formation, and it has the legal right, power and authority and is qualified to enter into this Agreement conduct its business and to perform its obligations hereunder;.
(ciii) its execution The making and performance do not violate by it of this Agreement is within its powers and has been duly authorized by all necessary action on its part.
(iv) This Agreement constitutes a legal, valid and binding act and obligation of it, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws affecting creditor’s rights generally.
(v) No Event of Default under Clause 24 with respect to it or, to its Knowledge, event, which with notice and or conflict with Applicable Lawa lapse of time would constitute such an Event of Default, any provision has occurred and is continuing, and no such event or circumstance would occur as a result of its constituent documentsentering into or performing its obligations under this Agreement.
(vi) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the Commodity Exchange Act, or any as amended.
(vii) It is a “forward contract binding on or affecting merchant,” as defined in Section 101(26) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil hereunder, and each sale of Oil hereunder is a forward contract for purposes of the Bankruptcy Code.
(viii) It is a “master netting agreement participant,” as defined in Section 101(38B) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil hereunder, and each sale of Oil hereunder is a master netting agreement for purposes of the Bankruptcy Code.
(ix) Neither it or nor any of its assets Affiliates has been contacted by or negotiated with any order finder, broker or judgment other intermediary in connection with the sale of Oil hereunder who is entitled to any Governmental Authority applicable to it or its assets;compensation with respect thereto.
(dx) all All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement and its performance hereunder and the consummation by it of the transactions contemplated hereby have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with;.
(exi) The execution, delivery and performance of this Agreement do not violate or conflict with (a) any Law applicable to it, (b) any provision of its obligations hereunder are legalconstitutional documents, valid (c) any order or judgment of any court or Governmental Authority applicable to it or any of its assets or (d) any contractual restriction binding on or affecting it or any of its assets, except to the extent such conflict or violation has not and binding, enforceable in accordance with their respective terms, subject could not be reasonably expected to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in cause a proceeding in equity or at law;Material Adverse Change.
(fxii) no Event of DefaultIt possesses all necessary permits, or Potential Event of Defaultauthorizations, has occurred registrations and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party licenses required to perform its obligations hereunder;
(m) it is hereunder and to consummate the transactions contemplated hereby, except to the extent such conflict or violation has not and could not be reasonably expected to cause a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Material Adverse Change.
(nxiii) it It is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation not bound by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the any other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact agreement that would otherwise make the informationpreclude its execution, document delivery, or statement misleading;performance of this Agreement.
Appears in 3 contracts
Samples: Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date Buyer and on Seller each Trade Date, each Party represents and warrants to the other as of the Effective Date and as of each Delivery that:
(ai) it There are no suits, proceedings, judgments, rulings or orders pending, or to its Knowledge, threatened, by or before any court or any Governmental Authority that materially and adversely affect its ability to perform, or the rights of the other Party, under this Agreement.
(ii) It is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) formation, and it has the legal right, power and authority and is qualified to enter into this Agreement conduct its business and to perform its obligations hereunder;.
(ciii) its execution The making and performance do not violate by it of this Agreement is within its powers and has been duly authorized by all necessary action on its part.
(iv) This Agreement constitutes a legal, valid and binding act and obligation of it, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws affecting creditor’s rights generally.
(v) No Event of Default under Clause 24 with respect to it or, to its Knowledge, event, which with notice and or conflict with Applicable Lawa lapse of time would constitute such an Event of Default, any provision has occurred and is continuing, and no such event or circumstance would occur as a result of its constituent documentsentering into or performing its obligations under this Agreement.
(vi) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the Commodity Exchange Act, or any as amended.
(vii) It is a “forward contract binding on or affecting merchant,” as defined in Section 101(26) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil and Feedstock hereunder, and each sale of Oil and Feedstock hereunder is a forward contract for purposes of the Bankruptcy Code.
(viii) It is a “master netting agreement participant,” as defined in Section 101(38B) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil and Feedstock hereunder, and each sale of Oil and Feedstock hereunder is a master netting agreement for purposes of the Bankruptcy Code.
(ix) Neither it or nor any of its assets Affiliates has been contacted by or negotiated with any order finder, broker or judgment other intermediary in connection with the sale of Oil and Feedstock hereunder who is entitled to any Governmental Authority applicable to it or its assets;compensation with respect thereto.
(dx) all All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement and its performance hereunder and the consummation by it of the transactions contemplated hereby have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with;.
(exi) The execution, delivery and performance of this Agreement do not violate or conflict with (a) any Law applicable to it, (b) any provision of its obligations hereunder are legalconstitutional documents, valid (c) any order or judgment of any court or Governmental Authority applicable to it or any of its assets or (d) any contractual restriction binding on or affecting it or any of its assets, except to the extent such conflict or violation has not and binding, enforceable in accordance with their respective terms, subject could not be reasonably expected to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in cause a proceeding in equity or at law;Material Adverse Change.
(fxii) no Event of DefaultIt possesses all necessary permits, or Potential Event of Defaultauthorizations, has occurred registrations and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party licenses required to perform its obligations hereunder;
(m) it is hereunder and to consummate the transactions contemplated hereby, except to the extent such conflict or violation has not and could not be reasonably expected to cause a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Material Adverse Change.
(nxiii) it It is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation not bound by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the any other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact agreement that would otherwise make the informationpreclude its execution, document delivery, or statement misleading;performance of this Agreement.
Appears in 3 contracts
Samples: Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party (a) Supplier hereby represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) a duly and validly organized and existing corporation in good standing under the laws of the other Party as investment advice or as a recommendation to enter into a transactionstate of Florida, and understands that information it or its Affiliates that may be performing its obligations under this Agreement are legally qualified to do business in each jurisdiction in which this Agreement may be performed and explanations related to where its activities hereunder require such qualification,
(ii) the terms performance of this Agreement and conditions the consummation of the transactions contemplated herein will not result in any breach, conflict, or violation of any Transaction will not be considered investment advice terms or provisions of, or constitute a recommendation default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to enter into that Transaction;which it is a party, by which it is bound, or to which any of its property is subject,
(jiii) all requisite corporate action has been taken for the due authorization, execution, delivery, and performance of this Agreement by it, and this Agreement constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the rights of creditors generally, and
(iv) it has made is not a party to any litigation relating to, or that could reasonably be expected to affect, its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;under this Agreement.
(mb) BioForm hereby represents and warrants that:
(i) it is a “forward contract merchant” within duly and validly organized and existing corporation in good standing under the meaning laws of United States Bankruptcy Code §101(26)the state of Delaware, and that it or its Affiliates that may be performing its obligations under this Agreement are legally qualified to do business in each jurisdiction in which this Agreement may be performed and where its activities hereunder require such qualification,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken for the due authorization, execution, delivery, and performance of this Agreement by it, and this Agreement and all Transactions hereunder constitute “forward contracts” within constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the meaning rights of United States Bankruptcy Code §101(26).creditors generally, and
(niv) it is an “eligible commercial entity”not a party to any litigation relating to, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12)or that could reasonably be expected to affect, respectively, and all Transactions hereunder have been subject its ability to individual negotiation by the Partiesperform its obligations under this Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: Exclusive Development, Distribution, and Supply Agreement, Exclusive Development, Distribution, and Supply Agreement (Bioform Medical Inc), Exclusive Development, Distribution, and Supply Agreement (Bioform Medical Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) : it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) ; it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) ; all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) ; no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) Agreement; it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) ; it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) ; it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) ; it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) ; it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) ; to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) ; it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).
(n) ; it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) ; and all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;. Additional Warranties of Seller. Seller represents and warrants to Buyer upon the Date of First Operation and on each Delivery Date through the expiry of the Delivery Term that all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with. Upon each Delivery, Seller represents and warrants to Buyer as follows: at the time of Delivery, Seller has the right to convey title to any and all of the RECs Delivered to Buyer in accordance with this Agreement free and clear of any and all liens or other encumbrances or title defects; Seller has sold and transferred the RECs once and only once exclusively to Buyer; the RECs and any other Environmental Attributes sold hereunder have not expired and have not been, nor will be retired, claimed or represented as part of electricity output or sale, or used to satisfy any renewable energy or other carbon or renewable generation attributes obligations under Illinois law or in any other jurisdiction; and that it has made no representation, in writing or otherwise, that any third-party has received, or has obtained any right to, such RECs that are inconsistent with the rights being acquired by Buyer hereunder; and the Product is Regulatorily Continuing and complies with the Applicable Program.
Appears in 3 contracts
Samples: Renewable Energy Credit Agreement, Renewable Energy Credit Agreement, Renewable Energy Credit Agreement
Mutual Representations and Warranties. On the Effective Date Each of Buyer and on each Trade DateSeller (for itself, each Party not jointly, but severally) represents and warrants to the other that:
that (ai) it is duly organized authorized to execute and validly existing deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance; (ii) it will engage in such Transactions as principal; (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf; (iv) this Agreement is legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar debtor/creditor laws and general principles of equity and public policy, (v) no approval, consent or authorization of any Transaction contemplated by this Agreement from any federal, state, or local regulatory authority having jurisdiction over it is required or, if required, such approval, consent or authorization has been or will, prior to the Purchase Date for such Transaction, be obtained; (vi) the execution, delivery, and performance of this Agreement and the Transactions hereunder will not violate any law, regulation, order, judgment, decree, ordinance, charter, by-law, or rule applicable to it or its property or constitute a default (or an event which, with notice or lapse of time, or both would constitute a default) under the laws or result in a breach of the jurisdiction any material agreement or other material instrument by which it is bound or by which any of its incorporation or organization;
assets are affected; (bvii) it has the power received approval and authority authorization to enter into this Agreement and each and every Transaction actually entered into hereunder pursuant to perform its obligations hereunder;
internal policies and procedures; and (cviii) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing neither this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of nor any Transaction will not be considered investment advice pursuant hereto are entered into in contemplation of insolvency or a recommendation with intent to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate hinder, delay or proper for it based upon its own judgment and defraud any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)creditor.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: Master Repurchase Agreement (Bingham Financial Services Corp), Master Repurchase Agreement (Bingham Financial Services Corp), Master Repurchase Agreement (Bingham Financial Services Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
, as of the Effective Date: (ai) it is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder;
under this Agreement, (cii) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) the performance by such Party of its obligations hereunder are legalhave been duly authorized, valid (iii) this Agreement has been duly executed and bindingdelivered on behalf of such Party, and is legally binding and enforceable on each Party in accordance with their respective its terms, subject (iv) the performance of this Agreement by it does not create a breach or default under any other agreement to applicable bankruptcy which it is a Party, (v) the execution, delivery and performance of this Agreement by such Party does not conflict with any agreement, instrument or similar laws affecting creditors’ rights generally and subjectunderstanding, as to enforceabilityoral or written, to equitable principles which it is a party or by which it is bound, nor violate any Law or regulation of general application regardless of whether enforcement is sought in a proceeding in equity any court, governmental body or at law;
administrative or other agency having jurisdiction over such Party, (fvi) no Event government authorization, consent, approval, license, exemption of Defaultor filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Laws currently in effect, is or will be necessary for, or Potential Event of Defaultin connection with, has occurred and is continuing, and none will occur as a result of its entering into or performing the transaction contemplated by this Agreement or any Transaction;
other agreement or instrument executed in connection herewith, or for the performance by it of its obligations under this Agreement and such other agreements, and (gvii) neither such Party, nor any of its employees, officers, subcontractors, or consultants who have rendered services relating to the Licensed Compounds: (a) has ever been debarred or is subject to debarment or convicted of a crime for which an entity or person could be debarred by the FDA under 21 U.S.C. Section 335a or (b) has ever been under indictment for a crime for which a person or entity could be so debarred. Certain information marked as [***] has been excluded from this exhibit because it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
both (i) it is not relying on any communication material and (written or oralii) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not would be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)competitively harmful if publicly disclosed.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: License Agreement (Immunome Inc.), License Agreement (Ayala Pharmaceuticals, Inc.), License Agreement (Ayala Pharmaceuticals, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatother, as of the Effective Date, as follows:
(a) it such Party is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization, and has all requisite power and authority, corporate or organization;otherwise, to execute, deliver and perform this Agreement; [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(b) it has the power execution and authority to enter into delivery of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorized by all necessary corporate action and will not violate (i) such Party’s certificate of incorporation or bylaws, (ii) any agreement, instrument or contractual obligation to perform which such Party is bound in any material respect, (iii) any requirement of any Applicable Laws, or (iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(c) this Agreement is a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms and conditions;
(d) such Party is not under any obligation, contractual or otherwise, to any person or entity that conflicts with or is inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder;
(ce) its execution and performance do not violate or conflict with Applicable Lawto such Party’s knowledge, any provision all of its constituent documentsemployees, or any contract binding on or affecting it or any officers, contractors, and consultants have executed agreements requiring assignment to such Party of its assets or any order or judgment all inventions made during the course of any Governmental Authority applicable and as a result of their association with such Party and obligating each such employee, officer, contractor, and consultant to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, maintain as to enforceability, to equitable principles confidential the Confidential Information of general application regardless of whether enforcement is sought in a proceeding in equity or at law;such Party; and
(f) no Event of Defaultneither such Party, or Potential Event of Default, has occurred and is continuing, and none will occur as a result nor any of its entering into employees, officers, subcontractors or performing this Agreement consultants who have rendered or any Transaction;
(g) it is not relying upon any representations of will render services relating to the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
Products: (i) it has ever been debarred or is not relying on subject or debarment or convicted of a crime for which an entity or person could be debarred under 21 U.S.C. Section 335a or its foreign equivalent or (ii) has ever been under indictment for a crime for which a person or entity could be debarred under any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)provision.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: License Agreement (Coherus BioSciences, Inc.), License Agreement (Coherus BioSciences, Inc.), License Agreement (Coherus BioSciences, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) : it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) ; it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) ; all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) ; no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) Agreement; it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) ; it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) ; it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) ; it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) ; it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) ; to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) ; it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).
(n) ; it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) ; and all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;. Additional Warranties of Seller. With respect to each Designated System, Seller represents and warrants to Buyer on the Trade Date through the expiry of the Delivery Term that such Designated System complies with the Applicable Program. Upon each Delivery, Seller represents and warrants to Buyer as follows: at the time of Delivery, Seller has the right to convey title to any and all of the RECs Delivered to Buyer in accordance with this Agreement free and clear of any and all liens or other encumbrances or title defects; Seller has sold and transferred the RECs once and only once exclusively to Buyer; the RECs and any other Environmental Attributes sold hereunder have not expired and have not been, nor will be retired, claimed or represented as part of electricity output or sale, or used to satisfy any renewable energy or other carbon or renewable generation attributes obligations under Illinois law or in any other jurisdiction; and that it has made no representation, in writing or otherwise, that any third-party has received, or has obtained any right to, such RECs that are inconsistent with the rights being acquired by Buyer hereunder; and the Product is Regulatorily Continuing and complies with the Applicable Program.
Appears in 3 contracts
Samples: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (a) Each Party represents and warrants to the other that:
: (ai) it is duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of its incorporation or organization;
(b) it formation, and has the all requisite corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate or partnership action; and (iii) this Agreement is legally binding upon it, enforceable against it in accordance with its terms, except as enforcement may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a Party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
(cb) its Each Party represents and warrants to the other that neither the execution and performance do not the delivery of this Agreement by it, nor the consummation by it of the transactions contemplated hereby shall (with or without the giving of notices or the passage of time) (i) violate any applicable law or conflict with Applicable Lawother restriction of any government, governmental authority or court to which it is subject or any provision of its constituent the charter or bylaws (or other organizational documents) of such Party or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Third Party the right to accelerate, terminate, modify or cancel, or require any contract binding on notice under any agreement, contract, lease, license, instrument or affecting other arrangement to which it is a party or by which it or any of its assets or any order or judgment is bound which (in the case of any Governmental Authority applicable to it or its assets;
clause (dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(eonly) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially could adversely affect the ability consummation of either Party to perform its obligations hereunder;
the transactions contemplated hereby or result in the imposition of any lien, security interest, charge, claim, encumbrance, limitation, restriction on use or transfer, conditional sale or other title retention device or arrangement (m) it is including a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26capital lease), and this Agreement and all Transactions hereunder constitute “forward contracts” within transfer for the meaning purpose of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it subjection to the payment of any indebtedness, or restriction on the creation of any of the foregoing, upon any of the AMYRIS Technology. AMYRIS is not required by any Legal Requirement to give any notice to, make any filing with or obtain any authorization, consent or approval of, any government or governmental authority or other Party third party in connection with order for AMYRIS to consummate the transactions contemplated by this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 3 contracts
Samples: Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.), Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.), Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated, continued or formed, as applicable, and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or conflict with Applicable Law, any provision of its constituent constating documents;
(ii) conflict with, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any contract binding on agreement, instrument, license, permit or affecting authority to which it is a party or by which it is bound, or to which any assets of such Party are subject, or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a material adverse effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transaction contemplated herein have been obtained duly approved by its board of directors or submitted by it with respect to entering into the board of directors of its general partner (as applicable) and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: Arrangement Agreement (Brookfield Infrastructure Corp), Arrangement Agreement (Brookfield Renewable Corp), Arrangement Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws Each of the jurisdiction of its incorporation or organization;
(b) it has the power Parties represents, warrants and authority to enter into this Agreement covenants, severally and to perform its obligations hereunder;
(c) its execution not jointly and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it solely with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legalitself, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjecteach other Party, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, date of this SRC Agreement and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms Closing Date (or, with respect to a New Investor Transferee, as defined in the Third-Party Commitment Assignment and risks Joinder Form in Exhibit C, the date of execution of such form and as of the sameClosing Date), and it is capable of assuming those risks;as follows:
(i) it is not relying on any communication (written or oral) validly existing and in good standing under the laws of the other Party as investment advice state or as a recommendation to enter into a transactioncountry of its organization, and understands that information this SRC Agreement is the legally valid and explanations related binding obligation of such Party, enforceable against it in accordance with its terms (subject, as to the terms enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium and conditions similar laws of any Transaction will not be considered investment advice general applicability relating to or a recommendation affecting creditors' rights and to enter into that Transactiongeneral principles of equity);
(jii) it has made all requisite corporate, partnership, limited liability company or similar authority to execute this SRC Agreement and carry out the transactions contemplated herein and in the Agreed Plan and perform its own independent trading obligations hereunder and investment decisions to enter into each transaction in the Agreed Plan, and as to whether the execution and delivery of this SRC Agreement and the performance of such transaction is appropriate Party’s obligations hereunder and in the Agreed Plan have been duly authorized by all necessary corporate, partnership, limited liability company or proper for it based upon other similar action on its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Partypart;
(kiii) it has not received from except as expressly provided in the SRC Agreement or the Agreed Plan, no consent or approval is required by any other Party any assuranceperson or entity to carry out the transactions contemplated by, guarantee or promise as and perform their respective obligations under, the Agreed Plan and this SRC Agreement, except (1) for approval by the Reorganization Court with respect to the expected Debtors, (2) potential approvals by ANATEL and XXXX, (3) if and to the extent required under applicable securities laws, the declaration that the Rights Registration Statement is effective by the SEC, (4) such additional steps as may be necessary to qualify the Offered Shares for public offering by the Company under the state securities or projected successblue sky laws of any state in the United States in which the Offered Shares are offered, profitability, return, performance, result, effect, consequence or benefit and (either economic, legal, regulatory, tax, financial, accounting or otherwise5) hereunder;such additional steps as may be necessary to qualify the Offered Shares for public offering by the Company under the securities laws of any jurisdiction other than Brazil and the United States in which the Offered Shares are offered; and
(liv) there is are no pending side letters, agreements or arrangements among any Debtors, any Investors or other holder of Bonds (i) relating to its knowledge threatened litigationthe sale or purchase of any securities of a Debtor, arbitration or administrative proceeding before any Governmental Authority the incurrence of debt of a Debtor or any arbitrator backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that is likely to materially could adversely affect any Investor’s rights under this SRC Agreement or the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreed Plan.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: Subscription and Commitment Agreement, Subscription and Commitment Agreement, Subscription and Commitment Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to and in favour of the other thatParty as follows and acknowledges that the other Party is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it CBCA and has the corporate power and authority to enter into this Agreement own its Assets and to conduct its businesses and to perform its obligations hereunder;
(b) the execution and delivery of this Agreement, of the Ancillary Agreements and of the Reorganization Documents by it and the completion by it of the transactions contemplated herein, in the Ancillary Agreements, in the Reorganization Documents, in the Plan of Arrangement and in the Tax Rulings do not and will not result in the breach of, or violate any term or provision of, its articles or by-laws;
(c) its execution and performance do not violate or conflict with Applicable Lawneither it nor, any provision in the case of its constituent documentsNovelis, or any contract binding on or affecting it or any of its assets Group members is subject to any outstanding injunction, judgment or any order or judgment order, of any Governmental Authority applicable which would prevent or materially delay the transactions contemplated by this Agreement, the Ancillary Agreements, the Reorganization Documents, the Plan of Arrangement or the Tax Rulings; there are no civil, criminal or administrative claims, actions, suits, demands, proceedings, hearings or investigations pending or, to it the Party's knowledge, threatened, at law, in equity or its assetsotherwise, in, before, or by, any Governmental Authority which (if successful) would prevent or materially delay the consummation of the transactions contemplated by this Agreement, the Ancillary Agreements, the Reorganization Documents, the Plan of Arrangement or the Tax Rulings;
(d) all governmental the facts and other authorizations, approvals, consents, notices information which appear in the Rulings Applications relevant to it are accurate in all material respects and filings there has been no omission to state a material fact or to provide other material information relating to it that are required would be relevant to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe granting of the Tax Rulings;
(e) no dissolution, winding up, bankruptcy, liquidation or similar proceeding has been commenced, or is pending or proposed, in respect of it, except as contemplated by the Plan of Arrangement; and
(f) the execution and delivery of this Agreement, of the Ancillary Agreements and of the Reorganization Documents and the completion of the transactions contemplated herein, in the Ancillary Agreements and in the Reorganization Documents, have been duly approved by its obligations hereunder are board of directors, and this Agreement, the Ancillary Agreements and the Reorganization Documents constitute legal, valid and binding, binding obligations of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or legislation relating to bankruptcy, insolvency, reorganization and other similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles legislation of general application regardless and other laws affecting the enforcement of whether creditors' rights generally, to general principles of equity and limitations upon the enforcement is sought in a proceeding in equity of indemnification for fines or at law;
(f) no Event of Default, or Potential Event of Default, has occurred penalties imposed by law and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations to the discretionary power of the other Party other than those expressly set forth herein, and it is acting for its own account, and not courts as agent regards specific performance or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)injunctive relief.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Samples: Separation Agreement (Alcan Inc), Separation Agreement (Novelis Inc.), Separation Agreement (Novelis Inc.)
Mutual Representations and Warranties. On the Effective Date Each of SLP and on each Trade Date, each Party Sol-Gel hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws Laws of the jurisdiction of in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including, without limitation, the right to grant the licenses granted by it hereunder;
(bi) it has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of the Agreement and the performance of its obligations hereunder; and (iii) the Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(c) it is not a party to any agreement that would materially prevent it from granting the rights granted to the other Party under this Agreement or performing its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsobligations under the Agreement;
(d) all governmental and other authorizationsto its knowledge, approvalsno consent, consents, notices and filings that are approval or agreement of any person or Governmental Authority is required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;Agreement; and
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from been debarred by the FDA, is not the subject of a conviction described in Section 306 of the FD&C Act, and is not subject to any similar sanction of any other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect outside of the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26)U.S., and this Agreement and all Transactions hereunder constitute “forward contracts” within neither it nor any of its Affiliates has used, in any capacity, any person or entity who either has been debarred by the meaning FDA, is the subject of United States Bankruptcy Code §101(26).
(n) it a conviction described in Section 306 of the FD&C Act or is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by any such similar sanction inside or outside of the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;U.S.
Appears in 2 contracts
Samples: License Agreement (Sol-Gel Technologies Ltd.), License Agreement (Sol-Gel Technologies Ltd.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties, and BN represents on behalf of itself and each of the Subsidiary Shareholders to each of the other Parties, as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(b) it has all necessary corporate power and authority to execute and deliver this Agreement, the Plan of Arrangement and the other agreements and documents to be entered into by it in connection with the Arrangement, to perform its obligations hereunder and thereunder and, subject to obtaining any required shareholder or Court approvals, to consummate the transactions contemplated hereunder and thereunder;
(c) its the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or provision of, its articles or by-laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable to it or its assetswhich would have a material adverse effect on it;
(d) all governmental and other authorizationsno dissolution, approvalswinding-up, consentsbankruptcy, notices and filings that are required liquidation or similar proceeding has been commenced or is pending or, to have been obtained or submitted such Party’s knowledge, is proposed in respect of it, except as contemplated by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe Plan of Arrangement;
(e) the execution and delivery of this Agreement and the completion of the transaction contemplated herein have been duly approved by its obligations hereunder are legalboard of directors, and this Agreement constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;; and
(f) other than the Interim Order, the Final Order and the Exemption (if the BN Shareholder Approval is not obtained), no Event of Defaultauthorization of, or Potential Event other action by or in respect of, or filing, recording, registering or publication with, any Governmental Authority is necessary on the part of Default, has occurred and is continuing, and none will occur as a result the Parties for the consummation by the Parties of its entering into or performing their obligations in connection with the Arrangement under this Agreement or any Transaction;
(g) it is not relying upon any representations for the completion of the other Party other than those expressly set forth hereinArrangement, except for such authorizations and it is acting for its own accountfilings as would not, and not as agent individually or in any other capacitythe aggregate, fiduciary reasonably be expected to prevent or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect delay the ability of either Party any of the Parties to perform its obligations hereunder;
(m) it is a “forward contract merchant” within consummate the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Arrangement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Arrangement Agreement (BROOKFIELD Corp /On/), Arrangement Agreement (Brookfield Asset Management Ltd.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the date hereof that:
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;and in good standing under such laws.
(b) it It has the corporate, governmental or other legal capacity, authority and power and authority to enter into execute this O&M Agreement, to deliver this O&M Agreement and to perform its obligations hereunder;under this O&M Agreement, and has taken all necessary action to authorize the foregoing.
(c) its execution The execution, delivery and performance of this O&M Agreement do not violate or conflict with any Applicable Law, any provision of its constituent constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;.
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing Its obligations under this O&M Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) constitute its obligations hereunder are legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, its terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;law and an implied covenant of good faith and fair dealing).
(e) There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this O&M Agreement or its ability to perform its obligations under this O&M Agreement.
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it It is not relying upon any representations of the other Party Party, other than those expressly set forth herein, and it is acting for its own account, in this O&M Agreement.
(g) It has entered into this O&M Agreement as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto ), with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;.
(ih) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it It has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it (including their suitability) based upon its own judgment and any advice from such its advisors as it has deemed necessary necessary, and not in reliance upon any view expressed by the other Party;.
(i) The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this O&M Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this O&M Agreement and (iii) has not given to it any assurance or guarantee as to the expected performance or result of this O&M Agreement.
(j) Neither it nor any of its Affiliates has negotiated with any finder, broker or other intermediary in connection with this O&M Agreement or the transactions hereunder.
(k) it None of its directors, officers, employees or agents or those of its Affiliates has not received from the other Party or will receive any assurancecommission, guarantee fee, rebate, gift or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability entertainment of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party significant value in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;O&M Agreement.
Appears in 2 contracts
Samples: Operating and Maintenance Agreement (Blueknight Energy Partners, L.P.), Operating and Maintenance Agreement (Blueknight Energy Partners, L.P.)
Mutual Representations and Warranties. On Each of Lilly and Avidity represent and warrant, as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) 9.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates and/or Third Parties) to enable it to perform its obligations under this Agreement;
9.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
9.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Research Collaboration and License Agreement (Avidity Biosciences, Inc.), Research Collaboration and License Agreement (Avidity Biosciences, Inc.)
Mutual Representations and Warranties. On the Effective Date AZ and on Company each Trade Daterepresents, each Party represents and warrants to the other Party, as of the Effective Date, and covenants to the other Party during the Term that:
(a) 12.1.1 it is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
(b) it has 12.1.2 the power execution and authority to enter into delivery of this Agreement and to perform each Project Schedule and the performance by it of the transactions contemplated hereby have been, or in the case of a Project Schedule, will be as of the Project Schedule Effective Date, duly authorized by all necessary corporate action on its obligations hereunderpart;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing 12.1.3 this Agreement have been obtained or submitted and are is, and, in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are the case of each Project Schedule, will be as of the Project Schedule Effective Date, a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding in equity at law or at lawequity);
(f) no Event 12.1.4 it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionthe applicable Project Schedule;
(g) 12.1.5 it has the right to grant the applicable rights and licenses provided for under this Agreement; and
12.1.6 neither it nor any of its Affiliates has been debarred or is not relying upon subject to debarment and neither it nor any representations of its Affiliates will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant to Section 306 of the other Party other than those expressly set forth herein, and it FFDCA or who is acting for its own account, and not as agent or the subject of a conviction described in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation such section. It agrees to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306, accurate and complete in every material respect and do not omit a material fact that would otherwise make or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 2 contracts
Samples: Master Collaboration Agreement (ArcherDX, Inc.), Master Collaboration Agreement (ArcherDX, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Product hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into this Agreement (including any internal authorizations, approvals and performing consents required by such Party under its organizational documents) have been obtained or submitted and are in full force and effect, and all conditions of this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.8 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.9 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.10 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.11 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.12 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.13 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.14 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Samples: Products Offtake Agreement (PBF Energy Inc.), Products Offtake Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the and in favour of each other Party that:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein and in the Tax Rulings and Rulings Applications do not and will not:
(i) result in the breach of, or violate any term or provision of, its articles or by-laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a Material Adverse Effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgment, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a Material Adverse Effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement, the Tax Rulings or its assets;the Rulings Applications; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transactions contemplated herein and in the Tax Rulings and Rulings Applications have been obtained or submitted duly approved by it with respect to entering into its board of directors, and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Arrangement Agreement (Encana Corp), Arrangement Agreement (Cenovus Energy Inc.)
Mutual Representations and Warranties. On the Effective Date Each of Medifocus and on each Trade Date, each Party JV hereby represents and warrants to the other thatas of the date hereof as follows:
(a) it is the execution, delivery and performance of this Agreement by such party have been duly organized and validly existing under authorized by all necessary action on the laws part of the jurisdiction of its incorporation or organizationsuch party;
(b) it has the power and authority to enter into this Agreement has been duly executed and delivered by such party and, assuming due authorization, execution and delivery by the other party, constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, subject to perform its obligations hereunder(i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws relating to or affecting the rights of creditors generally (including, without limitation, fraudulent conveyance laws) and (ii) the exercise of judicial discretion in accordance with general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, or injunctive relief;
(c) its execution such party’s execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby do not violate or and will not (i) violate, conflict with Applicable Law, or result in the breach of any provision of the certificate of incorporation or by-laws of such party, (ii) conflict with or violate any Law or governmental order applicable to such party or its constituent documentsassets, properties or businesses, or (iii) conflict with, result in any contract binding breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any encumbrance on any of its outstanding shares of common stock or affecting it preferred stock or any of its the assets or properties of such party pursuant to, any order note, bond, mortgage or judgment indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party or by which any of such party’s shares of common stock or preferred stock or any Governmental Authority applicable to it of the party’s assets or its assetsproperties is bound or affected;
(d) all governmental and other authorizationsit is not a party to any litigation relating to, approvalsor that could reasonably be expected to affect, consents, notices and filings that are required its ability to have been obtained or submitted by it with respect to entering into and performing perform its obligations under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withAgreement;
(e) its obligations hereunder are legal, valid the regulatory data it provides to the other party is complete and binding, enforceable accurate in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;all material respects; and
(f) no Event in the course of Defaultthe development and commercialization of the Products, such party shall not have used during the Term of this Agreement, any employee or consultant that has been debarred, or Potential Event to such party’s knowledge is the subject of Defaultdebarment proceedings, has occurred and is continuingby the FDA, and none will occur as a result of its entering into or performing this Agreement SFDA or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Regulatory Authority.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: License and Distribution Agreement (Medifocus Inc.), License and Distribution Agreement (Medifocus Inc.)
Mutual Representations and Warranties. On Without limiting the Effective Date representations and on each Trade Datewarranties made by the Parties in any other Implementing Document, each Party represents and warrants to the other thatParty as of the date hereof:
(a) it is duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation and has the full corporate power and authority to execute, deliver and perform this Agreement and the other Implementing Documents to which it is a party, and to consummate the transactions contemplated by this Agreement and the other Implementing Documents to which it is a party;
(b) it has the power execution, delivery and authority to enter into performance of this Agreement and the other Implementing Documents to perform which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on its obligations hereunderpart;
(c) this Agreement and the other Implementing Documents to which it is a party that have been executed and delivered on its execution behalf, have been duly executed and performance do not violate or conflict delivered and constitute its legal, valid, and binding obligations enforceable against it in accordance with Applicable Lawthe terms of this Agreement and such other Implementing Documents, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsrespectively;
(d) all governmental the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing performance of this Agreement have been obtained and the other Implementing Documents to which it is a party and the consummation of the transactions contemplated by this Agreement and such Implementing Documents do not (i) violate (A) any law or submitted any governmental rule or regulation applicable to it, in any material respect, (B) memorandum and are articles of incorporation, bylaws or other charter or organizational documents, or (C) any material order, judgment or decree of any court, governmental body or administrative or other agency having jurisdiction over it; or (ii) conflict with, result in full force and effect and all conditions thereof have been complied witha breach of or constitute a default under any contract or agreement to which it is a party or by which it is bound;
(e) no consent, approval or authorization of or from any third party, including any governmental entity, whether prescribed by law, regulation, contract or agreement, is required in order for its obligations hereunder are legalexecution or delivery of this Agreement and the other Implementing Documents to be effective, valid except for such filings with the U.S. Securities and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally Exchange Commission as may be required under Sections 13 and subject16 of the Securities Exchange Act of 1934, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;amended; and
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no action, suit, proceeding, inquiry or investigation before or by any governmental entity or any self-regulatory organization or body pending or, to its knowledge, threatened against or affecting it that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, this Agreement, any other Implementing Document or any other agreements, instruments and documents executed and delivered or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) be executed and delivered by it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 2 contracts
Samples: Framework Agreement (Glencore International Ag), Framework Agreement (Givolon LTD)
Mutual Representations and Warranties. On CTI, PolaRx and PharmaBio each represents and warrants solely with respect to itself to the other as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
: (a) it is a company duly organized organized, validly existing, and validly existing in good standing under the laws of the its jurisdiction of its incorporation or organization;
incorporation; (b) it is duly qualified as a corporation and in good standing in each jurisdiction where the failure to be so qualified or in good standing has the power and authority or could reasonably be expected to enter into this Agreement and to perform its obligations hereunder;
have a Material Adverse Effect; (c) its execution the execution, delivery and performance of this Agreement by it is within its corporate power and has been duly authorized by all necessary action on its part; (d) the execution, delivery and performance by it of the Transaction Documents to which it is a party do not and shall not (i) violate or conflict with Applicable Law, any provision of its constituent documentsarticles of incorporation or bylaws or any law or governmental rule or regulation applicable to it, (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contract binding on material agreement to which it is a party or affecting it by which its assets are bound, (iii) result in or require the creation or imposition of any lien upon any of its properties or assets (other than pursuant to the Transaction Documents), (in each case, except for such breaches, conflicts or defaults that do not have or are not reasonably likely to, individually or in the aggregate, have a Material Adverse Effect), or (iv) require or be subject to any order consent or judgment approval of any Governmental Authority applicable Third Party or governmental entity whether under any agreement or otherwise, except where failure to it obtain such consent or its assets;
(d) all governmental approval does not result in, or is not reasonably likely to result in, a Material Adverse Effect; and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, each Transaction Document to which it is a party has been duly executed and delivered and is the legally valid and bindingbinding obligation, enforceable against it in accordance with their respective termsthe terms thereof, subject to applicable bankruptcy except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting relating to or limiting creditors’ rights generally and subject, as to enforceability, to or by equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Financing Agreement (Cell Therapeutics Inc), Financing Agreement (Cell Therapeutics Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other that:
(a) it is a corporation duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organizationincorporation, and it has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement;
(b) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereundergrant the rights and licenses granted by it under this Agreement;
(c) as of the Effective Date, there are no existing or, to its execution and performance do not violate knowledge, threatened actions, suits or conflict claims pending with Applicable Law, any provision respect to the subject matter of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it this Agreement or its assetsright to enter into and perform its obligations under this Agreement;
(d) as of the Effective Date, it has taken all governmental necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement;
(e) this Agreement has been duly executed and delivered on behalf of it, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof, subject to the general principles of equity and to bankruptcy, insolvency, moratorium and other authorizationssimilar Laws affecting the enforcement of creditors’ rights generally;
(f) as of the Effective Date, approvals, all necessary consents, notices approvals and filings that are authorizations of all Regulatory Authorities and Governmental Authorities and other Persons required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement and the performance of its obligations under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinRegulatory Approvals to develop, market and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those riskscommercialize Licensed Products);
(i) it neither such Party nor, to the actual knowledge of such Party, any employee, agent or subcontractor of such Party involved or to be involved in the development and commercialization of Licensed Products has been debarred under Subsection (a) or (b) of Section 306 of the United States Federal Food, Drug, and Cosmetic Act (21 U.S.C. 335a); (ii) no Person who is not relying known by such Party to have been debarred under Subsection (a) or (b) of Section 306 of such Act will be employed by such Party in the performance of any activities hereunder; and (iii) to the actual knowledge of such Party, no Person on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionFDA clinical investigator enforcement lists (including the (1) Disqualified/Totally Restricted List, (2) Restricted List and understands that information and explanations related to (3) Adequate Assurances List) will participate in the terms and conditions performance of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;activities hereunder; and
(jh) it has made its own independent trading the execution and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability delivery of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions the performance of its obligations hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit conflict with, or constitute a material fact that would otherwise make the informationdefault under, document or statement misleading;any of its contractual obligations.
Appears in 2 contracts
Samples: License Agreement (Verastem, Inc.), License Agreement (Verastem, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) as of the Effective Date, it is a corporation duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organizationincorporation, and it has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement;
(b) as of the Effective Date, it has the full right, power and authority to enter into this Agreement and to perform its obligations hereundergrant the rights granted by it under this Agreement;
(c) as of the Effective Date, there are no existing or, to its execution and performance do not violate knowledge, threatened actions, suits or conflict claims pending with Applicable Law, any provision respect to the subject matter of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it this Agreement or its assetsright to enter into and perform its obligations under this Agreement;
(d) as of the Effective Date, it has taken all governmental necessary action on its part to authorize the execution and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing delivery of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe performance of its obligations under this Agreement;
(e) its obligations hereunder are this Agreement has been duly executed and delivered on behalf of it, and constitutes a legal, valid and bindingvalid, binding obligation, enforceable against it in accordance with their respective termsthe terms hereof, subject to applicable bankruptcy or the general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws Laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawgenerally;
(f) no Event as of Defaultthe Effective Date, or Potential Event all necessary consents, approvals and authorizations of Default, has occurred all regulatory and is continuing, governmental authorities and none will occur as a result other Persons required to be obtained by it in connection with the execution and delivery of this Agreement and the performance of its entering into or performing obligations under this Agreement or any Transaction;have been obtained; and
(g) it is not relying upon any representations the execution and delivery of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions the performance of its obligations hereunder constitute “forward contracts” within the meaning do not conflict with any of United States Bankruptcy Code §101(26).
its contractual obligations (nexcept that Acorda makes no representation or warranty with respect to its obligations pursuant to Acorda Third Party Agreements) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit constitute a material fact that would otherwise make the information, document or statement misleading;default under any of its contractual obligations.
Appears in 2 contracts
Samples: Supply Agreement (Acorda Therapeutics Inc), Supply Agreement (Acorda Therapeutics Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each Assignor hereby represents and warrants to Assignee, and Assignee, on behalf of the other Purchasing Accounts, hereby represents and warrants to each Assignor as of the date of this Agreement and as of the Payment Date that:
(a) it is duly organized has full power and validly existing under authority and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations hereunder and to consummate the laws of the jurisdiction of its incorporation or organizationtransactions contemplated hereby;
(b) the making and performance by it has the power and authority to enter into of this Agreement does not and will not violate any law or regulation of the jurisdiction under which it exists, any other law applicable to perform its obligations hereunderit or any other agreement to which it is a party or by which it is bound;
(c) this Agreement has been duly and validly authorized, executed and delivered by it and is legal, valid, binding and enforceable against it in accordance with its execution and performance do not violate terms except that the enforceability may be limited by bankruptcy, insolvency or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetslaws governing creditors rights;
(d) all governmental any consent, approval, filing or corporate, partnership or other action required as a condition to or in connection with the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing performance of this Agreement have has been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;obtained; and
(e) its obligations hereunder are legal, valid Assignor and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally Assignee each has adequate information concerning the business and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations financial condition of the other Party other than those expressly set forth hereinDebtor and the status of the Proceedings in order to make an informed decision regarding the sale and purchase of Assignor’s Assigned Claims, and it is acting for has independently and without reliance on the other with respect to such information, and based on such information as each has deemed appropriate (including information available from the files of the Court of the Proceedings), made its own account, analysis and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation decision to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Assignment of Claim Agreement, Assignment of Claim Agreement (C Cor Net Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Execution Date, each Party represents and warrants to the other Party that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) it has the power and authority to enter into this Agreement and all Governmental Approvals necessary for it to perform its obligations hereunderunder this Agreement, except on the Execution Date only for CPUC Approval in the case of PacifiCorp;
(c) its execution the execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it;
(d) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally;
(e) it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(f) there is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or perform its assetsobligations under this Agreement;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fg) no Event of Default, or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(gh) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by or recommendations of the other PartyParty in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(mi) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of the United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.Act; and
(oi) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take Delivery of the Product, as provided in this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 2 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Product hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of this Agreement have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.8 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.9 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.10 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.11 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.12 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.13 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.14 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Samples: Products Offtake Agreement (PBF Energy Inc.), Products Offtake Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (i) Each Party represents and warrants to the other Party as of the Third Restatement Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, (ii) each Transaction Entity and CRC represents and warrants to Xxxx as of each CRC Joinder Effective Date and (iii) each Transaction Entity represents and warrants to Xxxx as of each CRC Release Date, in each case, that:
17.1.1 (ai) it is an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, (ii) it is a “forward contract merchant” (as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code) in respect of this Agreement and the other Safe Harbor Agreements and (iii) intends to be a “master netting agreement participant” for all purposes as such term is defined in section 101(38A) of the Bankruptcy Code and as used in Section 561 of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all material governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement and that could reasonably be expected to result in a Material Adverse Change;
17.1.8 it has entered into the Transaction Documents and will enter into any transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) it has not received from the other Party Transaction Documents and any assurancetransaction, guarantee or promise as to understands and accepts the expected or projected successterms, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderconditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder;
(l) there 17.1.10 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.11 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Samples: Inventory Intermediation Agreement and Step Out Agreement (PBF Holding Co LLC), Inventory Intermediation Agreement (PBF Holding Co LLC)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatParty that as of the Effective Date:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction of in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(b) it has the power full right and authority to enter into this Agreement and to perform all of its obligations hereunder;
(c) it has taken all necessary corporate action on its part required to authorize the execution and performance do not violate or conflict with Applicable Law, any provision delivery of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles the performance of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(md) it has taken all other action necessary to authorize such execution, delivery and performance as required by Applicable Law, its certificate of incorporation, by-laws or other organizational documents or any agreement to which it is a party or to which it may be subject;
(e) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(f) it is not a “forward contract merchant” within party to any agreement that would prevent it from granting the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party in connection with under this Agreement are trueor performing its obligations under this Agreement;
(g) neither the execution and delivery of this Agreement nor the performance hereof by it requires it to obtain any permits, accurate authorizations or consents from any governmental authority (other than any Regulatory Approvals) or from any other person, firm or corporation, and complete such execution, delivery and performance will not result in every material respect and do not omit the breach of or give rise to any right of termination, rescission, renegotiation or acceleration under, or trigger any other rights under, any agreement or contract to which it is a material fact party or to which it may be subject that would otherwise make relates to Affimed Background Technology in the informationcase of Affimed, document or statement misleadingto Artiva Background Technology in the case of Xxxxxx;
(h) [***];
(i) [***]; and
(j) to the best of its knowledge:
(i) [***]; and
(ii) [***].
Appears in 2 contracts
Samples: Collaboration Agreement (Artiva Biotherapeutics, Inc.), Collaboration Agreement (Artiva Biotherapeutics, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the Effective Date, that:
: (aA) it is a corporation duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of its incorporation or organization;
formation; (bB) it has the full corporate power and authority to enter into execute, deliver and perform this Agreement, and has taken all corporate action required by applicable law and its organizational documents to authorize the execution and delivery of this Agreement and to perform its obligations hereunder;
the consummation of the transactions contemplated by this Agreement; (cC) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding agreement enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
; (f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(oD) all applicable informationconsents, documents approvals and authorizations from all Governmental Authorities or statements that have been furnished in writing other Third Parties required to be obtained by or on behalf of it to the other Party in connection with this Agreement are truehave been obtained; (E) the execution and delivery of this Agreement, accurate and complete in every material respect and the consummation of the transactions contemplated hereby, do not omit and shall not (x) conflict with or result in a breach of 21 any provision of its organizational documents, (y) result in a breach of any other agreement to which it is a party, or (z) violate any appliable law; (F) it has and will at all times during the Term comply with all applicable laws in all material fact that would otherwise make respects, including obtaining all necessary licenses, permits, and authorizations necessary to perform this Agreement and to exploit any license or rights granted to it hereunder, as now or hereafter required under any applicable statutes, laws, ordinances, rules and regulations; and (G) it has not prior to the informationEffective Date and shall not during the Term (x) have been debarred under Article 306 of the FDCA, document 21 U.S.C. § 335a(a) or statement misleading;(b), or any equivalent foreign or local law, rule or regulation, or (y) use or employ in any capacity related to the subject matter of this Agreement or activities hereunder any individual, corporation, partnership, or association which has been debarred under Article 306 of the FDCA, 21 U.S.C. § 335a(a) or (b), or any equivalent foreign or local law, rule or regulation.
Appears in 2 contracts
Samples: Manufacturing Rights Agreement (Sutro Biopharma, Inc.), Manufacturing Rights Agreement (Vaxcyte, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each 16.1 Each Party represents and warrants to the other Party as of the Closing Date of this Agreement and of each sale of Crude Oil hereunder, that:
(a) it It is an “Eligible Contract Participant” as defined in Section la(12) of the Commodity Exchange Act, as amended.
(b) It is a “forward contract merchant” in respect of this Agreement and each Sale Contract hereunder constitutes a “forward contract,” as such terms are defined in the Bankruptcy Code.
(c) It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;and in good standing under such laws.
(bd) it It has the corporate, governmental or other legal capacity, authority and power and authority to enter into execute this Agreement, to deliver this Agreement and to perform its obligations hereunder;under this Agreement, and has taken all necessary action to authorize the foregoing.
(ce) its execution The execution, delivery and performance in the preceding paragraph (d) do not violate or conflict with Applicable Lawany law applicable to it, any provision of its constituent constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;.
(df) all All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with;.
(eg) Its obligations under this Agreement constitute its obligations hereunder are legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, its terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;).
(fh) no No Event of Default, Default or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement.
(i) There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transaction;its ability to perform its obligations under this Agreement.
(gj) it It is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, in this Agreement.
(k) It has entered into this Agreement as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto ), with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;.
(il) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it It has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it (including their suitability) based upon its own judgment and any advice from such its advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;.
(km) it The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this Agreement and (iii) has not received from the other Party given to it any assurance, assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability result of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it It is an “eligible commercial entity”not bound by any agreement that would preclude or hinder its execution, and an “eligible contract participant” within the meaning delivery, or performance of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Partiesthis Agreement.
(o) all applicable information, documents or statements that have Neither it nor any of its Affiliates has been furnished in writing contacted by or on behalf negotiated with any finder, broker or other intermediary in connection with the sale of it Crude Oil hereunder who is entitled to the other Party any compensation with respect thereto.
(p) None of its directors, officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 2 contracts
Samples: Crude Oil Supply Agreement (CVR Energy Inc), Crude Oil Supply Agreement (CVR Energy Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Samples: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Samples: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date MedImmune and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
7.1.1. It is a corporation or limited liability company (aas applicable) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
7.1.2. The execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (a) such Party’s charter documents, bylaws or other organizational documents; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
any requirement of any Applicable Law; or (c) its execution and performance do not violate any order, writ, judgment, injunction, decree, determination or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment award of any Governmental Authority court or governmental agency presently in effect applicable to it or its assetssuch Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this 7.1.3. This Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding at law or equity); *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
7.1.4. It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in equity or at law;
(f) no Event any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations that would impede the diligent and complete fulfillment of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;; and
(m) 7.1.5. Neither it nor any of its Affiliates has been debarred or is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the Parties.
(o) all applicable informationservices or activities to be performed under this Agreement, documents any Person who has been debarred pursuant to Section 306 of the FFDCA or statements that have been furnished who is the subject of a conviction described in writing by or on behalf of it to such section. It will inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services or activities hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 2 contracts
Samples: License Agreement (PhaseBio Pharmaceuticals Inc), License Agreement (PhaseBio Pharmaceuticals Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party DISH represents and warrants to the other that:
T-Mobile, and T-Mobile represents and warrants to DISH, that (ai) it is a legal entity duly organized and organized, validly existing and in good standing under the laws Laws of the its jurisdiction of organization and has all governmental licenses, authorizations, permits, consents and approvals required to carry on its incorporation or organization;
business as now conducted; (bii) it has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder and activities contemplated hereby; (iii) it is duly qualified as a foreign entity and is in good standing in each jurisdiction where such qualification is required, except for those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on its ability to fulfill its obligations hereunder;
; (civ) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and bindingbinding obligations on it, enforceable against it in accordance with their respective termsits terms (except as enforceability may be limited by applicable bankruptcy, subject to applicable bankruptcy or insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting of general applicability relating to or effecting creditors’ rights generally or by general equity principles); (v) from the date of the Purchase Agreement through the Closing Date of the Purchase Agreement, DISH has taken no action that would have constituted a Restricted Transfer pursuant to Section 12.7 or a Change of Control pursuant to Section 12.8 had those provisions been in effect during that period of time; and subject(vi) the execution, as to enforceabilitydelivery and performance of this Agreement will not conflict with, to equitable principles of general application regardless of whether enforcement is sought violate or result in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations breach of the other Party other than those expressly set forth herein, and it is acting for its own account, and not “FCC MNSA Approval” (as agent or defined in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26Purchase Agreement).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Master Network Services Agreement (DISH Network CORP), Master Network Services Agreement (T-Mobile US, Inc.)
Mutual Representations and Warranties. On the Effective Date FMI and on Roche each Trade Date, each Party represents represent and warrants to the other warrant that:
(a) it is duly organized has all requisite power and validly existing authority to enter into and perform its obligations under the laws of the jurisdiction of its incorporation or organizationthis Agreement;
(b) it has no outstanding agreement or obligation that is in conflict with any of the power and authority to enter into provisions of this Agreement or that would preclude its personnel from complying with the provisions hereof;
(c) all of its employees, officers and consultants have executed agreements requiring assignment to it of all Inventions made by such individuals during the course of and as a result of their participation in activities under this Agreement;
(d) the execution, delivery and performance of this Agreement by it and all instruments and documents to be delivered by it hereunder: (i) are within its corporate power; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of any of its formation or governing documents; (iv) to its knowledge, will not violate any law or regulation or any order or decree of any court of governmental instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which it is a party or by which it or any of its property is bound, which violation would have an adverse effect on its financial condition or on its ability to perform its obligations hereunder; and (vi) do not require any filing or registration with, or the consent or approval of, any governmental body, agency, authority or any other person, which has not been made or obtained previously (other than approvals required under the HSR Act, Regulatory Approvals required for the sale of Products and filings with Regulatory Authorities required in connection with Products);
(ce) its execution and performance do not violate there are no claims or conflict investigations (other than with Applicable Lawrespect to the Parties’ HSR filings), any provision of its constituent documents, pending or any contract binding on or affecting threatened against it or any of its assets Affiliates, at law or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Defaultequity, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into before or performing by any governmental authority relating to the matters contemplated under this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to would materially adversely affect the its ability of either Party to perform its obligations hereunder;; and
(mf) neither it nor any of its Affiliates is a “forward contract merchant” within or will be under any obligation to any person, contractual or otherwise, that is conflicting with the meaning terms of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make impede the information, document or statement misleading;fulfillment of its obligations hereunder.
Appears in 2 contracts
Samples: Collaboration Agreement (Foundation Medicine, Inc.), Collaboration Agreement (Foundation Medicine, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other Party, as of the Effective Date, that:
(a) it 8.1.1 such Party is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the full corporate power and authority to enter into this Agreement and to perform carry out the provisions hereof;
8.1.2 execution of this Agreement and the performance by such Party of its obligations hereunderhereunder have been duly authorized;
(c) its execution 8.1.3 this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof;
8.1.4 the performance of this Agreement by it does not create a material breach or default under any other agreement to which it is a party;
8.1.5 the execution, delivery and performance do of this Agreement by such Party does not violate or conflict with Applicable Lawany agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound, nor violate any provision of its constituent documents, Law or any contract binding on or affecting it or any of its assets or any order or judgment regulation of any Governmental Authority applicable to it court, governmental body or its assets;
(d) all governmental administrative or other agency having jurisdiction over such Party; *** Certain information on this page has been omitted and other authorizations, approvals, consents, notices and filings that are required to have filed separately with the Commission. Confidential treatment has been obtained or submitted by it requested with respect to entering into and performing this Agreement have been obtained the omitted portions.
8.1.6 no government authorization, consent, approval, license, exemption of or submitted and are filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Laws currently in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legaleffect, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy is or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Defaultwill be necessary for, or Potential Event of Defaultin connection with, has occurred and is continuing, and none will occur as a result of its entering into or performing the transaction contemplated by this Agreement or any Transaction;
(g) other agreement or instrument executed in connection herewith, or for the performance by it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and under this Agreement and all Transactions hereunder constitute “forward contracts” within such other agreements except as may be required to obtain clearance under the meaning HSR Act; and
8.1.7 neither such Party, nor any of United States Bankruptcy Code §101(26).its employees, officers, subcontractors, or consultants who have rendered services relating to the Products:
(na) it has ever been debarred or is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation debarment or convicted of a crime for which an entity or person could be debarred by the PartiesFDA under 21 U.S.C. Section 335a or (b) has ever been under indictment for a crime for which a person or entity could be so debarred.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Co Development, Co Promotion, Marketing and Licensing Agreement, Co Development, Co Promotion, Marketing and Licensing Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable LawLawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactiontransactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction transactionTransaction and as to whether such transaction transactionTransaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).);
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Samples: Master Renewable Energy Certificate Credit Purchase and Sale Agreement, Master Renewable Energy Certificate Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or provision of, its articles or by-laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a material adverse effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transaction contemplated herein have been obtained or submitted duly approved by it with respect to entering into its board of directors, and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Samples: Arrangement Agreement (Brookfield Asset Management Ltd.), Arrangement Agreement (Brookfield Asset Management Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other thatparties as follows and acknowledges that the other parties are relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) it is duly organized incorporated and validly existing under the laws of the its jurisdiction of incorporation and has the corporate power and authority to own or lease its incorporation or organizationproperty and assets and to carry on its business as now conducted by it;
(b) the execution and delivery of this Agreement by it, including all matters contemplated hereby, have been authorized by all necessary corporate action and it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunderunder this Agreement except for the approvals of the MFC Common Shareholders and the MFC Bondholders to be sought at the MFC Meeting;
(c) it has duly executed and delivered this Agreement, and this Agreement is a valid and binding agreement enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity; and
(d) the execution and performance delivery of this Agreement and the completion of the transactions contemplated hereby and in the Plan of Arrangement do not violate now and will not as of the Effective Date:
(i) conflict with, or conflict with Applicable Lawresult in a breach of, or create a state of facts which after notice or lapse of time or both results or may result in a breach of, any provision of the terms, conditions or provisions of its constituent documents, constating documents or the constating documents of any of its subsidiaries or any contract binding on material agreement, instrument, licence, permit, undertaking, commitment or affecting understanding to which it or any of its assets subsidiaries is a party or by which it is bound; or
(ii) violate any provision of law or administrative regulation or any order judicial or administrative award, judgment of any Governmental Authority or decree applicable and known to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26after due inquiry), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning breach of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder which would have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;adverse effect on it.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other thatParty as follows:
(a) it 9.1.1. It is a corporation duly organized and validly existing under the laws law of the jurisdiction of its incorporation or organizationin which it is incorporated;
(b) it 9.1.2. It has the corporate and legal right, title, power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 9.1.3. It has all necessary corporate and any other approvals for execution, delivery and performance of this Agreement;
9.1.4. Upon execution and performance do not violate or conflict with Applicable Lawdelivery, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, shall constitute a valid and bindingbinding obligation of it, enforceable in accordance with their respective its terms, subject to except as enforceability may be limited by applicable bankruptcy bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and subject, except as enforceability may be subject to enforceability, to equitable general principles of general application equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law), to the extent that these laws cannot be and are not contracted out by the terms of this Agreement;
(f) no Event 9.1.5. The execution, delivery and performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement will not conflict in any way with the terms of any other agreement or instrument to which it is or becomes a party or by which it is or becomes bound, nor violate any Transactionlaw or regulation or decision of any court, governmental body or administrative or other agency having authority over it;
(g) it is not relying upon any representations of the other 9.1.6. The persons executing this Agreement on its behalf are duly authorized to do so and by so doing have bound such Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of this Agreement; and
9.1.7. There is no action, suit, investigation or proceeding pending against, or to its knowledge, threatened against or affecting it before any Transaction will court, arbitrator or any governmental authority, including but not be considered investment advice limited to regulatory authorities, that in any manner challenges or a recommendation seeks to enter into that Transaction;
(j) it has made prevent, enjoin, alter or materially delay the contemplated transactions, and, to its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assuranceknowledge, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending reasonably valid basis for any such action, suit investigation or proceeding to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), be brought. [***] Certain information in this document has been omitted and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it submitted separately to the other Party in connection Securities and Exchange Commission. Confidential treatment has been requested separately with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make to the information, document or statement misleading;omitted portions.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, except as provided in this Agreement:
(a) it is duly organized and validly existing under the laws formed in its place of the jurisdiction of its incorporation or organization;
(b) it is in good standing with respect to the filing of annual reports under the legislation under which it is incorporated or existing;
(c) it has the full legal capacity and power and authority to carry on its business, to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(cd) it has taken all corporate action necessary to authorize its execution entry into this Agreement and to perform its obligations under this Agreement;
(e) this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy, subject to laws generally affecting creditors’ rights and to principles of equity;
(f) the execution, delivery and performance do of this Agreement by it does not violate and will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Lawor result in a breach of or default under its constating documents, any material term or provision of its constituent documentsany undertaking, agreement, deed or security arrangement, or any contract binding on writ, order, injunction, judgment, law, rule or affecting regulation to which it is a party or is subject, or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionbound;
(g) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to the best of its knowledge, threatened against it is not relying upon any representations which, if adversely decided, could, in the reasonable opinion of the other Party other than those expressly set forth hereinParty’s management, and it is acting for have a material adverse effect on the Party’s business, assets or financial condition such as to materially impair its own account, and not as agent or in any other capacity, fiduciary or otherwiseability to perform its obligations under this Agreement;
(h) no liquidator, trustee in bankruptcy, receiver, receiver manager or other external administrator is currently appointed in relation to it has entered hereinto with a full understanding or any of the material terms and risks of the same, and it is capable of assuming those risks;its property; and
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions best of its knowledge, there are no facts, matters or circumstances which give any Transaction will not be considered investment advice or a recommendation Person the right to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending appoint or to its knowledge threatened litigationapply to appoint (as the case may be) a liquidator, arbitration trustee in bankruptcy, receiver, receiver manager or administrative proceeding before any Governmental Authority other external administrator to it or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)property.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the date of this Agreement and as of each Delivery of the Contract RECs and payment in respect of the Purchase Price that:
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organizationand, if relevant under such laws, in good standing;
(b) it It has the corporate authority and power to execute, deliver and authority to perform the Agreement and enter into this Agreement and to perform its obligations hereunderany transaction contemplated hereby;
(c) its execution Such execution, delivery and performance of this Agreement have been duly authorized and do not violate or conflict with Applicable Lawany law applicable to it, any provision of its constituent constitutional documents, any order or judgment of any court or other agency of government applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizationsThere is no pending or (to its knowledge) threatened litigation, approvals, consents, notices and filings arbitration or administrative proceeding that are required materially adversely affects its ability to have been obtained or submitted by it with respect to entering into and performing perform under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;Agreement.
(e) its obligations hereunder are legal, valid and binding, enforceable It is an “Eligible Contract Participant” as defined in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjectSection 1a(18) of the Commodity Exchange Act, as to enforceabilityamended, to equitable principles 7 U.S.C. § 1a(18), and it is a “forward contract merchant” and this Agreement is a “forward contract” within the meaning of general application regardless of whether enforcement is sought in a proceeding in equity or at law;the United States Bankruptcy Code.
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it It is not relying upon any advice, reports, analyses, or representations of the other Party other than those expressly set forth hereinin this Agreement or any written guarantee of the obligations of such other Party, and the other Party has not given to it any assurance or guarantee as to the expected financial performance or result of this transaction, and it is acting has entered into this transaction as principal and for its own account, account (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto ), with a full understanding of of, and the ability to assume, the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it (including regarding the suitability thereof) based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)necessary.
(ng) it is an “eligible commercial entity”This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to bankruptcy, reorganization, and an “eligible contract participant” within the meaning similar laws affecting creditors’ rights generally and to general principals of United States Commodity Exchange Act §§1a(11) and 1a(12equity (regardless whether considered in a proceeding in equity or at law), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that:party that (subject to obtaining any relevant Regulatory Approvals):
(a) (Status): it is duly organized and validly existing a company limited by shares under the laws of the jurisdiction of its incorporation or organizationCorporations Act;
(b) (Power): it has the full legal capacity and power to:
(i) own its property and authority to carry on its business; and
(ii) enter into this Agreement document and subject to perform its obligations hereunderthe satisfaction of the Conditions to carry out the transactions that this document contemplates;
(c) (Corporate authority): it has taken all corporate action that is necessary or desirable to authorise its entry into this document and subject to the satisfaction of the Conditions to carry out the transactions that this document contemplates;
(d) (Authorisations): it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this document and subject to the satisfaction of the Conditions to carry out the transactions that this document contemplates;
(ii) ensure that this document is legal, valid, binding and admissible in evidence; and
(iii) enable it to properly carry on its business, and it is complying with any conditions to which any Authorisation is subject;
(e) (Document effective): this document constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms;
(f) (No contravention): neither its execution and performance do not violate of this document nor the carrying out by it of the transactions that it contemplates, does or conflict with Applicable Law, will:
(i) contravene any provision of its constituent documents, or any contract binding on or affecting law to which it or any of its assets property is subject or any order or judgment of any Governmental Authority applicable to Government Agency that is binding on it or any of its assetsproperty;
(dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withcontravene any Authorisation;
(eiii) contravene any undertaking or instrument binding on it or any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;property; or
(fiv) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of contravene its entering into or performing this Agreement or any Transactionconstitution;
(g) it is not relying upon any representations (No litigation): otherwise than as disclosed in writing to each other prior to the date of the other Party other than those expressly set forth hereinthis Agreement, no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or to its knowledge, threatened which, if adversely decided, could have, for Gindalbie a Gindalbie Material Adverse Change and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwiseSundance a Sundance Material Adverse Change;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and (No Insolvency Event): it is capable of assuming those risks;not affected by an Insolvency Event; and
(i) (Not representative): it is not relying on any communication (written or oral) of the other Party as investment advice or as entering into this document in a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)representative capacity.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Merger Implementation Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Dateof this Agreement, each Party represents and warrants to the other Party that:
(a) it It is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) It has all regulatory authorizations necessary for it has the power and authority to enter into this Agreement and to legally perform its obligations hereunderunder this Agreement (other than permits or regulatory authorizations to be obtained by Seller for the construction, operation or maintenance of the Facility, which Seller reasonably anticipates it will be able to obtain in due course);
(c) its execution The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it, and the Agreement constitutes its legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses.
(d) It is not Bankrupt and there are no proceedings pending or affecting being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(e) There is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) perform its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement;
(f) no No Event of Default, Default or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it It is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by or recommendations of the other PartyParty in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement;
(kh) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it It is a “"forward contract merchant” " within the meaning of the United States Bankruptcy Code §101(26), and Code; and
(i) It has entered into this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate the conduct of its business and complete it has the capacity or ability to make or take delivery of all Product referred to in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Mutual Representations and Warranties. On the Effective Date ArQule and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
(a) it It is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform under this Agreement;
(b) it has the power The execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate:
(i) such Party's charter documents, bylaws or other organizational documents;
(ii) in any material respect, any agreement, instrument or contractual obligation to perform its obligations hereunderwhich such Party is bound;
(iii) any requirement of any Applicable Law; or
(iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(c) This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its execution terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance do not violate and general principles of equity (whether enforceability is considered a proceeding at law or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsequity);
(d) all governmental and other authorizationsIt is not under any obligation, approvalscontractual or otherwise, consents, notices and filings to any Person that are required to have been obtained conflicts with or submitted by it is inconsistent in any material respect with respect to entering into and performing the terms of this Agreement have been obtained or submitted that would impede the diligent and are in full force and effect and all conditions thereof have been complied with;complete fulfilment of its obligations hereunder; and
(e) Neither it nor any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, Affiliates has been debarred or is subject to applicable bankruptcy or similar laws affecting creditors’ rights generally debarment and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result neither it nor any of its entering into or performing Affiliates will use in any capacity, in connection with the services to be performed under this Agreement or Agreement, any Transaction;
(g) it is not relying upon any representations Person who has been debarred pursuant to Section 306 of the other Party other than those expressly set forth herein, and it FFDCA or who is acting for its own account, and not as agent or the subject of a conviction described in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction such section. It will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates' Knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Samples: License Agreement (Arqule Inc)
Mutual Representations and Warranties. On the Effective Date Each Party represents, warrants and on each Trade Date, each Party represents and warrants covenants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) 8.1.1 it has the requisite power and full authority to enter into this Agreement, and such Party’s execution, delivery of, actions relating to and performance under this Agreement have been duly authorized by such Party and do not and will not violate or conflict with any charter, by-law, law (including but not limited to applicable privacy legislation), contract, including, but not limited to, agreements with Third Parties, permit or obligation applicable to such Party;
8.1.2 such Party is the owner of, or otherwise has all of the rights necessary to use (and, as applicable, permit the other Party to use), all Intellectual Property that it may from time to time make available to the other Party in connection with fulfilling its obligations under this Agreement;
8.1.3 such Party shall perform its obligations under this Agreement in accordance with Applicable Law, and has obtained all necessary consents, approvals and authorizations of all governmental authorities and other persons or entities required to be obtained by it in connection with this Agreement;
8.1.4 nothing herein is in exchange for any explicit or implicit agreement or understanding that either Party purchase, lease, order, prescribe, or recommend or otherwise arrange for, or provide preferential formulary or other status for, the use of any products of the other Party or its Affiliates;
8.1.5 it will perform all obligations and undertakings set forth herein in a good and workmanlike manner and in accordance with generally accepted industry practices;
(a) Neither it nor any of its Affiliates has been debarred or is subject to debarment pursuant to Section 306 of the FFDCA or analogous provisions of Applicable Law outside the United States or listed on any excluded list, and (b) neither it nor any of its Affiliates has, to its knowledge, used in any capacity, in connection with the activities to be performed under this Agreement, any individual or entity that has been debarred pursuant to Section 306 of the FFDCA or analogous provisions of Applicable Law outside the United States, or that is the subject of a conviction described in such Section or analogous provisions of Applicable Law outside the United States, or listed on any excluded list; and
8.1.7 such Party will maintain throughout the Term all permits, licenses, registrations and other forms of authorizations and approvals from any Governmental Authority, necessary or required to be obtained or maintained by such Party in order for such Party to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict hereunder in a manner which complies with all Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On Each of the Effective Date Parties, severally and on each Trade Datenot jointly, each Party represents and warrants to each other Party that, as of the other thatdate such Party executes this Agreement or a Joinder, as applicable:
(a) it is duly organized and validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it , and has the power and all requisite corporate, partnership, limited liability company or similar authority to enter into this Agreement and to carry out the transactions contemplated hereby and perform its obligations contemplated hereunder, and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, partnership, limited liability company, or other similar action;
(b) this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(c) except as expressly provided in this Agreement, the Plan, and the Bankruptcy Code, if applicable, no consent or approval is required by any other Person or Entity in order for it to effectuate the Restructuring Transactions contemplated by, and perform its execution and performance do not violate or conflict with Applicable Lawrespective obligations under, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsthis Agreement;
(d) all governmental the execution, delivery, and performance of such Party of this Agreement do not, and will not (i) violate (A) any provision of any Law or regulations applicable to it or (B) its articles of association, memorandum of association, charter, bylaws, or other authorizationsgoverning documents or (ii) conflict with or constitute a breach of or default (without notice or lapse of time, approvalsor both) under, consentsor give rise to a right of termination, notices modification, or cancellation of any obligation under any material contractual obligation to which it is a party, except in the case of clause (i)(A) and filings that are required to have been obtained or submitted by it (ii)(Y) with respect to entering into Company Parties, as would not reasonably be expected to have a material adverse effect on Company Parties, taken as a whole, and performing this Agreement have been obtained (Z) with respect to any other Party, as would not reasonably be expected to prevent or submitted and are in full force and effect and all conditions thereof have been complied withmaterially impair, alter, or delay the ability of such Party to consummate the transactions contemplated hereby;
(e) to its obligations hereunder are legalknowledge, valid and bindingno facts or circumstances, enforceable in accordance including with their respective termsrespect to any pending or threatened legal actions, subject exist that would be reasonably expected to applicable bankruptcy impair or similar laws affecting creditors’ rights generally and subject, as delay the ability of such Party to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;consummate the Restructuring Transactions; and
(f) no Event of Defaultexcept as expressly provided by this Agreement, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon party to any representations of restructuring or similar agreements or arrangements with the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation Parties to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have not been furnished in writing by or on behalf of it disclosed to the other Party in connection with all Parties to this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On (a) CryoCor hereby represents and warrants as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) a duly and validly organized and existing corporation in good standing under the laws of the other Party as investment advice or state of Delaware, and that it is qualified to do business as a recommendation foreign corporation in each jurisdiction in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to enter into do so would not have a transactionmaterial adverse effect on CryoCor or its business,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach, conflict or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken to authorize the execution, delivery, and understands that information performance of this Agreement by it, and explanations related to this Agreement constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the terms and conditions rights of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;creditors generally, and
(jiv) it has made is not a party to any litigation relating to, or that could reasonably be expected to adversely affect, its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;under this Agreement.
(mb) Each of BSC and BSS hereby represents and warrants as of the Effective Date that:
(i) it is a “forward contract merchant” within duly and validly organized and existing corporation in good standing under the meaning laws of United States Bankruptcy Code §101(26)its jurisdiction of incorporation, and that it is qualified to do business as a foreign corporation in each jurisdiction in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on it or its business,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken to authorize the execution, delivery, and performance of this Agreement by it, and this Agreement and all Transactions hereunder constitute “forward contracts” within constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the meaning rights of United States Bankruptcy Code §101(26).creditors generally, and
(niv) it is an “eligible commercial entity”not a party to any litigation relating to, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12)or that could reasonably be expected to adversely affect, respectively, and all Transactions hereunder have been subject its ability to individual negotiation by the Partiesperform its obligations under this Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other other, as of the Effective Date, that:
(a) 11.1.1 it is a corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction of its incorporation organization, and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
11.1.2 the execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action, and do not violate (a) such Party’s charter documents, bylaws, or other organizational documents, (b) any agreement, instrument, or contractual obligation to which such Party is bound, (c) any requirement of any Applicable Law or (d) any order, writ, judgment, injunction, decree, determination, or award of any court or governmental agency presently in effect applicable to such Party;
11.1.3 this Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency, or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance, and general principles of equity (whether enforceability is considered a proceeding at law or equity);
11.1.4 it is not under any obligation, contractual or otherwise, to a Person that conflicts with or is inconsistent with the terms of this Agreement, or that would impede the diligent and complete fulfillment of its obligations hereunder;
11.1.5 to its knowledge, it has not (i) employed and has not used a Contractor or consultant that has employed, any Person debarred by the power FDA (or subject to similar sanctions of the EMA or other Regulatory Authority) or (ii) employed any Person that is the subject of an FDA debarment investigation or proceeding (or similar proceeding of the EMA or other Regulatory Authority), with respect to (i)-(ii), in the conduct of any pre-clinical activities with respect to Compounds;
11.1.6 no consent of any Third Party is required for such Party to grant the licenses and authority rights granted to enter into the other Party under this Agreement and or to perform its obligations hereunder;; and
(c) its execution 11.1.7 all of such Party’s personnel and performance do not violate or conflict with Applicable Lawemployees and Third Parties, any provision of its constituent documentsincluding Contractors, hired by such Party and involved in activities under this Agreement are, or when hired will be, under a written agreement whereby they have presently assigned to such Party any contract binding right that they may have in any invention first invented, discovered, made, conceived or reduced to practice while employed by or working on behalf of such Party in the conduct of activities pursuant to the Research Plan, or affecting it in the Development, Manufacture or Commercialization of any of its assets such Compounds or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectivelyProducts, and all Transactions hereunder have been subject to individual negotiation by the Partiesintellectual property rights therein.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On Each of Lilly and Merus represent and warrant, as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) 10.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates and/or Third Parties) to enable it to perform its obligations under this Agreement;
10.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
10.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought [*] Certain information in this document has been omitted as the information is not material and would be competitively harmful if publicly disclosed. considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereto represents and warrants (as to itself only and, with respect to Bioverda and Virgin, as to the Investor) to the other Parties, as of the date of this Agreement and, if Units are issued to the Investor pursuant to the terms of this Agreement, as of the date of each such issuance of Units, that:
(a) it It is duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of establishment and (i) in the case of the Company, that the Company has all requisite company power and authority to own, operate and lease the properties and assets it now owns, operates and leases, and to carry on its incorporation business as and where such properties and assets are now owned, operated and leased and as such business is now conducted and (ii) in the case of Bioverda and Virgin, that Bioverda and Virgin, as applicable, has all requisite power and authority to carry on its business as such business is now conducted insofar as the same is material to the performance of the obligations of Bioverda or organization;Virgin, as applicable, under this Agreement.
(b) it It has the full power and authority to enter into into, deliver and perform its obligations under this Agreement and has taken all necessary corporate action to perform its obligations hereunder;
(c) its execution authorize the execution, delivery and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) this Agreement constitutes its obligations hereunder are legal, valid and binding, binding obligation enforceable against it in accordance with their respective termsthe terms set forth herein, subject to applicable bankruptcy except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable by general principles of general application equity (regardless of whether enforcement is sought in a proceeding in equity or at law;).
(fc) no Event Each of Defaultthe execution, or Potential Event delivery and performance by such Party of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is does not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and will not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on conflict with or violate any communication provision of any constitutional or governance documents of such Party, (ii) constitute a violation by such Party of any law, rule, regulation, order, writ, judgment, injunction or decree applicable to such Party, (iii) contravene any provision, or constitute a default under, any indenture, mortgage, contract (written or oral) of the or other Party as investment advice or as a recommendation instrument to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within party or by which it is or any of its property is bound or (iv) result in or require the meaning creation or imposition of United States Bankruptcy Code §101(26)any lien, pledge, hypothecation or other encumbrance upon any of its property or assets, except to the extent of the Operating Agreement amendments.
(d) There is no action, suit, investigation, litigation or proceeding affecting such Party pending or threatened which purports to affect the legality, validity or enforceability of this Agreement.
(e) It has (or, in the case of the Investor, will have) sufficient financial resources to discharge its obligations and to perform this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning transactions contemplated hereby assuming, in the case of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”the Company, the closing on the Offering and its required debt financing as described in the Offering, and an “eligible contract participant” within there are no liabilities, contingent liabilities, obligations or restrictions imposed on its operations or activities which could interfere with the meaning performance of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents its obligations under this Agreement or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;transactions contemplated hereby.
Appears in 1 contract
Samples: Investment Terms Agreement (Ethanol Grain Processors, LLC)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (1) Each Party represents and warrants to the each other Party that:
(a) it is duly organized formed, incorporated, amalgamated or continued (as the case may be) and validly existing exists under the laws of the jurisdiction law of its incorporation place of formation, incorporation, amalgamation or organizationcontinuance;
(b) it is in good standing under the legislation under which it was formed, incorporated, amalgamated or continued (as the case may be);
(c) it has the power full legal capacity and authority power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Agreement and to perform its obligations hereunderunder this Agreement.
(d) it is or at the relevant time will be directly or indirectly (through an Affiliate) qualified to do business in the State of Alaska and lawfully authorized to hold Mineral Rights in the State of Alaska;
(ce) it has taken all action (whether corporate or otherwise) that is necessary to authorize its entry into this Agreement and to perform its obligations under this Agreement;
(f) this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy subject to laws generally affecting creditors’ rights and to principles of equity (where applicable);
(g) the execution, delivery and performance by it of this Agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(i) its execution and performance do not violate Charter Documents;
(ii) any material term or conflict with Applicable Law, any provision of its constituent documentsany security arrangement, undertaking, agreement or deed; or
(iii) any contract binding on writ, order or affecting injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisebound;
(h) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to its knowledge, threatened against it has entered hereinto with a full understanding which if adversely decided could, in the reasonable opinion of the Party’s management, have a material terms and risks of adverse effect on the sameParty’s business, and it is capable of assuming those risksassets (including the Property) or financial condition such as to materially impair its ability to perform its obligations under this Agreement;
(i) no liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator is currently appointed in relation to it is not relying on or any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transactionits property;
(j) to its knowledge, there are no facts, matters or circumstances which give any person the right to appoint or to apply to appoint (as the case may be) a liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator to it has made or any of its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;property; and
(k) it has is unaware of any material facts or circumstances that have not received from the been disclosed in this Agreement, which should be disclosed to each other Party any assurance, guarantee or promise as in order to prevent the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwiserepresentations and warranties in this section 2.1(1) hereunder;from being materially misleading.
(l2) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect The representations and warranties contained in section 2.1(1) will be treated as made and be binding upon each Party continuously during the ability term of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the each Party must immediately notify each other Party if any of its representations and warranties set out in connection with this Agreement section 2.1 are true, accurate not true and complete correct in every any material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;respect.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the and in favour of each other Party that:
(a) it It is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it CBCA and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its Except as disclosed in the Circular or in writing to the other, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in breach of, or violate any term or provision of, its articles or by laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a Material Adverse Effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgment, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a Material Adverse Effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transactions contemplated herein have been obtained or submitted duly approved by it with respect to entering into its board of directors, and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Arrangement Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Effective Date:
(a) it 10.1.1 It is duly organized and validly existing under the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it and has the power full power, authority and authority right to enter into this Agreement and to perform its obligations hereunderhereunder in accordance with the terms and conditions hereof, and all requisite corporate action has been taken to authorize its execution, delivery and performance of this Agreement;
(c) its execution 10.1.2 The execution, delivery and performance do of this Agreement by it does not violate breach, violate, conflict with, contravene or conflict with Applicable Law, any provision of constitute a default under its constituent charter documents, bylaws or other organization documents or any contract binding on contract, arrangement or affecting commitment to which it is a party or by which it is bound, or violate any statute, law or regulation or any of its assets court or any order or judgment of any Governmental Authority applicable to it or its assetsBody having jurisdiction over such Party;
10.1.3 This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (d) all governmental and other authorizations, approvals, whether enforceability is considered a proceeding at law or equity);
10.1.4 All consents, notices approvals and filings that are authorizations from all Governmental Bodies or other Third Parties required to have been be obtained or submitted by it in connection with respect to entering into the execution, delivery and performing performance of this Agreement have been obtained obtained; and
10.1.5 Neither it, nor any of its officers or submitted employees, nor to its knowledge, any of its agents and are in full force contractors, is a Sanctioned Person, and effect neither it nor any of its officers, employees, nor to its knowledge, any of its agents, and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Defaultcontractors, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or engaged in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact conduct that would otherwise make the information, document or statement misleading;reasonably be expected to result in such person being a Sanctioned Person.
Appears in 1 contract
Samples: License and Development Agreement (Cartesian Therapeutics, Inc.)
Mutual Representations and Warranties. On (1) Silver Bull, the Effective Date Company and on each Trade DateContratistas, each respectively, represent and warrant to South32 and South32 Party represents and warrants to each Silver Bull Party that on the other thatEffective Date:
(a) it is duly organized formed, incorporated, amalgamated or continued (as the case may be) and validly existing exists under the laws of the jurisdiction law of its incorporation place of formation, incorporation, amalgamation or organizationcontinuance;
(b) it is in good standing under the legislation under which it was formed, incorporated, amalgamated or continued (as the case may be);
(c) it has the power full legal capacity and authority power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Agreement and to perform its obligations hereunderunder this Agreement.
(d) it is or at the relevant time will be directly or indirectly (through an Affiliate) qualified to do business in Coahuila State, Mexico and lawfully authorized to hold Mineral Rights in Coahuila State, Mexico;
(ce) it has taken all action (whether corporate, by its shareholders or otherwise) that is necessary to authorize its entry into this Agreement and to perform its obligations under this Agreement;
(f) this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy subject to laws generally affecting creditors’ rights and to principles of equity (where applicable);
(g) the execution, delivery and performance by it of this Agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(i) its execution and performance do not violate Charter Documents;
(ii) any material term or conflict with Applicable Law, any provision of its constituent documentsany security arrangement, undertaking, agreement or deed; or
(iii) any contract binding on writ, order or affecting injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisebound;
(h) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to its knowledge, threatened against it has entered hereinto with a full understanding which if adversely decided could, in the reasonable opinion of the Party’s management, have a material terms and risks of adverse effect on the sameParty’s business, and it is capable of assuming those risksassets (including the Property) or financial condition such as to materially impair its ability to perform its obligations under this Agreement;
(i) no liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator is currently appointed in relation to it is not relying on or any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transactionits property;
(j) to its knowledge, there are no facts, matters or circumstances which give any person the right to appoint or to apply to appoint (as the case may be) a liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator to it has made or any of its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;property; and
(k) it has is unaware of any material facts or circumstances that have not received from the been disclosed in this Agreement, which should be disclosed to each other Party any assurance, guarantee or promise as in order to prevent the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwiserepresentations and warranties in this section 2.1(1) hereunder;from being materially misleading.
(l2) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect The representations and warranties contained in section 2.1(1) will be treated as made and be binding upon each Party continuously during the ability term of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the each Party must immediately notify each other Party if any of its representations and warranties set out in connection with this Agreement section 2.1 are true, accurate not true and complete correct in every any material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;respect.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Samples: Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On As of the Effective Date and on each Trade DateDelivery, each Party represents and warrants to the other Party that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) : it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do of this Agreement does not violate or conflict with Applicable Law, any provision of its constituent constating documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjectand, as to enforceabilityin the case of the Province, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) the Crown Proceeding Act, R.S.B.C. 1996, c. 89; no Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) ; it is not relying upon any representations of the other Party other than those expressly set forth herein, and in relation to the transactions contemplated in this Agreement, it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with , on behalf of a full understanding Third Party, except, in respect of the material terms Province, acting to acquire Offset Units to transfer to or retire on behalf of Third Parties; and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the its ability of either Party to perform its obligations hereunder;
(m) under this Agreement. As of the Effective Date and each Delivery, Vendor represents and warrants to the Province that: it is a “forward contract merchant” within duly organized and validly existing under the meaning laws of United States Bankruptcy Code §101(26), and this Agreement and the jurisdiction of its incorporation or organization; all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it Vendor to the other Party Province, the Validation Provider, the Verification Provider, or any combination thereof, in connection with this Agreement Agreement, the validation or acceptance of the Project Plan for the Project, the generation or verification of Project Reductions, and the issuance of Project Offset Units, are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the informationrespect; there is no pending, document or statement misleading;to Vendor’s knowledge threatened, claim, litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator:
Appears in 1 contract
Samples: Offset Purchase Agreement
Mutual Representations and Warranties. On the Effective Date Mabwell and on Disc each Trade Date, each Party represents and warrants to the other thatother, as of the Execution Date:
(a) it It is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver, and perform this Agreement;
(b) it has the power The execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized (and to perform the extent required, will be ratified by such party’s shareholders promptly following the Execution Date) by all necessary corporate action and do not violate (i) such Party’s charter documents, bylaws, or other organizational documents; (ii) any agreement, instrument or contractual obligation to which such Party is bound; (iii) any requirement of any Applicable Law; or (iv) any order, writ, judgment, injunction, decree, determination, or award of any court or governmental agency presently in effect applicable to such Party;
(c) This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency, or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance, and general principles of equity (whether enforceability is considered a proceeding at law or equity);
(d) It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder;
(ce) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting Neither it or nor any of its assets Affiliates has been debarred or is subject to debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant to Section 306 of the FFDCA or any order foreign equivalents or judgment who is the subject of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are a conviction described in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none such section. It will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 or any foreign equivalents or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment, or statement misleading;conviction of it or any such Person performing services hereunder; and
Appears in 1 contract
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party Parties hereby represents and warrants to the other thatParty as follows:
(a) 11.1.1. As of [*], it is duly organized and validly existing under the laws Laws of the its jurisdiction of its incorporation or organization;
(b) and it has the full corporate power and authority and has taken all corporate action necessary to enter into and perform this Agreement;
11.1.2. As of [*], this Agreement is a legal and to perform its obligations hereunder;
(c) its execution valid obligation binding upon such Party and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective its terms; the execution, subject delivery and performance of the Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, by which it is bound, nor to applicable bankruptcy its knowledge as of [*] violate any Law; and the person or similar laws affecting creditors’ rights generally and subjectpersons executing this Agreement on such Party’s behalf have been duly authorized to do so by all requisite corporate action;
11.1.3. To its knowledge, as to enforceabilityof [*] no government authorization, to equitable principles consent, approval, license, exemption of general application regardless of whether enforcement or filing or registration with any court or Governmental Authority, under Law, is sought in a proceeding in equity or at law;
(f) no Event of Defaultshall be necessary for, or Potential Event of Defaultin connection with, has occurred and is continuing, and none will occur as a result of its the entering into or performing of this Agreement or the transaction contemplated by this Agreement, or (except for MHLW or other regulatory approvals, licenses, clearances and the like necessary for the research, development, manufacture, sales or marketing of pharmaceutical products and except for any Transactionrequired filing with the United States Securities and Exchange Commission) for the performance by it of its obligations under this Agreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise11.1.4. [*];
(h) it has entered hereinto with a full understanding 11.1.5. As of the material terms and risks of the same[*], and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from been debarred or the other Party subject of debarment proceedings by any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderGovernmental Authority;
(l) there is no pending 11.1.6. It has not granted as of [*] any right to any Third Party relating to any patent, trademark or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator other proprietary right that is likely to materially adversely affect conflicts with the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party hereunder;
11.1.7. As of [*], it has not knowingly used in connection with the research, development, manufacture or commercialization to take place pursuant to this Agreement are trueany employee, accurate consultant or investigator that has been debarred or the subject of debarment proceedings by any Governmental Authority;
11.1.8. It has carried out its activities materially in accordance with Law (including relevant Laws relating to economic sanctions and complete bribery); and
11.1.9. It has not knowingly misappropriated any trade secret(s) of a Third Party in every material respect and do not omit a material fact that would otherwise make connection with the information, document or statement misleading;performance of its activities hereunder.
Appears in 1 contract
Samples: License Agreement (Amgen Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
: (a) as of the Effective Date, it is a corporation duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
incorporation, and it has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement; (b) as of the Effective Date, it has the full right, power and authority to enter into this Agreement and to grant the rights granted by it under this Agreement; (c) as of the Effective Date, there are no existing or, to its knowledge, threatened actions, suits or claims pending with respect to the subject matter of this Agreement or its right to enter into and perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
under this Agreement; (d) as of the Effective Date, it has taken all governmental necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement; (e) this Agreement has been duly executed and delivered on behalf of it, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof, subject to the general principles of equity and to bankruptcy, insolvency, moratorium and other authorizationssimilar Laws affecting the enforcement of creditors’ rights generally; (f) as of the Effective Date, approvals, all necessary consents, notices approvals and filings that are authorizations of all regulatory and governmental authorities and other Persons required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement and the performance of its obligations under this Agreement have been obtained or submitted obtained; and are in full force (g) the execution and effect delivery of this Agreement and all conditions thereof have been complied with;
(e) the performance of its obligations hereunder are legal, valid and binding, enforceable in accordance do not conflict with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result any of its entering into contractual obligations (except that Acorda makes no representation or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto warranty with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or respect to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely obligations pursuant to materially adversely affect the ability of either Acorda Third Party to perform its obligations hereunder;
(mAgreements) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit constitute a material fact that would otherwise make the information, document or statement misleading;default under any of its contractual obligations. 8.2
Appears in 1 contract
Samples: Supply Agreement
Mutual Representations and Warranties. On the Effective Date Each of Exact and on each Trade Date, each Party Pfizer hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization;
(b) the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite action under the provisions of its certificate of incorporation, bylaws and other organizational documents, and does not require any action or approval by any of its shareholders or other holders of its voting securities or voting interests that has not been taken;
(c) it has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have has been obtained or submitted duly executed by an appropriate representative of such Party and are is a legal, valid and enforceable against such Party in full force and effect and all conditions thereof have been complied withaccordance with its terms;
(e) the execution, delivery and performance by such Party of this Agreement and its obligations hereunder are legal, valid compliance with the terms and binding, enforceable in accordance provisions hereof does not and will not conflict with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought result in a proceeding in equity breach of or at lawdefault under (i) any oral or written agreement that binds such Party’s operations or property, including any assignment, license agreement, loan agreement, guaranty or financing agreement, (ii) the provisions of such Party’s certificate of incorporation, bylaws or other organizational documents, or (iii) any order, writ, injunction, decree or judgment of any court or Governmental Authority entered against such Party or by which any of such Party’s operations or property are bound;
(f) no Event all material written information provided by each Party in the virtual data room maintained for the purposes of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing the proposed transactions under this Agreement or any Transaction;is complete, truthful and accurate in all material respects; and
(g) it is not relying upon neither it, nor any representations of the other Party other than those expressly set forth hereinits Affiliates, and it is acting for its own accountnor, and not as agent to such Party’s knowledge, any of their respective Representatives has been debarred or in suspended under 21 U.S.C. § 335(a) or (b), excluded from a federal health care program, debarred from federal contracting, or convicted of or pled nolo contendere to any other capacityfelony, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration any federal or administrative proceeding before any Governmental Authority state legal violation (including misdemeanors) relating to medical devices or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
fraud (m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26Debarred/Excluded”).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Purchaser hereby represents and warrants to the other XxXxxx Parties (which representations and warranties will survive the Closing) and each of the XxXxxx Parties hereby represents and warrants to Purchaser (which representations and warranties will survive the Closing) that:
(a) it has the requisite corporate power, legal capacity and competence to enter into and execute this Agreement and each Transaction Document to which it is a party and to take all actions required or transactions contemplated pursuant hereto and thereto and it is duly organized incorporated and validly existing subsisting under the laws of the its jurisdiction of its incorporation or organizationincorporation;
(b) it has taken all corporate steps and proceedings necessary to duly approve the power and authority to enter into transactions contemplated by this Agreement and each Transaction Document to perform which it is a party, and all necessary approvals and consents by its obligations hereunderdirectors, shareholders and others have been obtained to authorize execution and performance of this Agreement and each Transaction Document to which it is a party on behalf of it, and in the case of the Company, the Company has obtained a written consent in respect of the transfer of the Purchased Shares contemplated hereunder signed by all of the shareholders of the Company in accordance with the Shareholder Agreement;
(c) its execution the entering into of this Agreement and performance each Transaction Document to which it is a party and the transactions contemplated hereby and thereby do not violate or conflict with Applicable Lawresult in the violation of any of the terms and provisions of any law applicable to, any provision of its constituent documentsor, or any contract binding on or affecting if applicable, the constating documents of, it or any of its assets or any order or judgment of any Governmental Authority applicable agreement, written or oral, to which it may be a party or its assets;by which it is or may be bound; and
(d) all governmental it has duly executed and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing delivered this Agreement have been obtained and each Transaction Document to which it is a party and each such agreement or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, document constitutes a valid and binding, binding agreement of it enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party The Purchaser represents and warrants to the other thatVendor and Vendor represents and warrants to the Purchaser, as follows:
(a) in the case of the Purchaser, it is duly organized and validly existing under the laws of the jurisdiction place of its establishment or incorporation and is in good standing and existing under the laws of the place of its establishment or organizationincorporation, and in the case of the Vendor, he is the full age of majority and is legally competent to execute this Agreement and take all action pursuant hereto;
(b) this Agreement constitutes a legal, valid and binding obligation of the Party, enforceable against it in accordance with its terms by appropriate legal remedy, subject, however, to limitations with respect to enforcement imposed by Applicable Law in connection with bankruptcy or similar proceedings and to the extent that equitable remedies such as specific performance and injunction are in the discretion of the court from which they are sought;
(c) the Party is not insolvent under the Applicable Laws of its jurisdiction and is able to pay its debts as they fall due;
(d) neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder or thereunder, nor the consummation of the transactions hereby contemplated conflict with any of, or require the consent or waiver of rights of any Person, nor do or shall do any of the foregoing:
(i) violate any provision of or require any consent, authorization or approval under any Applicable Law;
(ii) conflict with, result in a breach of, constitute a default under (whether with notice or the lapse of time or both), accelerate or permit the acceleration of the performance required by, or require any consent, authorization or approval which has not been obtained under, any contract to which it the Party is a party or by which the Party is bound or to which any of the Party’s property is subject; or
(iii) result in the creation of any Encumbrance on the Property, except in accordance with the terms of this Agreement;
(e) the Party has all requisite power and authority required to enter into this Agreement and each other document or instrument delivered in connection herewith and has all requisite power and authority to perform fully each and every one of its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;; and
(f) no Event of Defaultthe Party has not incurred any liability, contingent or Potential Event of Defaultotherwise, has occurred and is continuing, and none will occur as a result of its entering into for brokers’ or performing this Agreement or any Transaction;
(g) it is not relying upon any representations finders’ fees in respect of the other Party other than those expressly set forth transactions contemplated herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) it is duly organized and validly existing formed in its place of organization, is in good standing with respect to the filing of annual reports under the laws of the jurisdiction of legislation under which it is incorporated or existing, and has full legal capacity and power to carry on its incorporation or organization;
(b) it has the power and authority business, to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(b) it has taken all corporate action necessary to authorize its entry into this Agreement and the performance of its obligations under this Agreement;
(c) this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its execution terms by appropriate legal remedy, subject to laws generally affecting creditors’ rights and to principles of equity;
(d) the execution, delivery and performance do of this Agreement by it does not violate and will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Lawwith, any provision or result in a breach of or default under, its constituent constating documents, or any contract binding on material term of any undertaking, agreement, deed, security arrangement, writ, order, injunction, judgment, law, rule or affecting regulation to which it is a party or is subject, or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withproperty is bound;
(e) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to the best of its knowledge, threatened against it which, if adversely decided, could, in the reasonable opinion of the Party’s management, have a material adverse effect on the Party’s business, assets or financial condition such as to materially impair its ability to perform its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement;
(f) no Event of Defaultliquidator, trustee in bankruptcy, receiver, receiver manager or Potential Event of Default, has occurred and other external administrator is continuing, and none will occur as a result currently appointed in relation to it or any of its entering into or performing this Agreement or any Transactionproperty;
(g) to the best of its knowledge, there are no facts, matters or circumstances which give any Person the right to appoint, or to apply to appoint (as the case may be), a liquidator, trustee in bankruptcy, receiver, receiver manager or other external administrator to it is not relying upon or any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;property; and
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions aware of any Transaction will not be considered investment advice material fact or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it circumstance which has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it disclosed to the other Party which should be disclosed in connection with order to prevent its representations and warranties in this Agreement are true, accurate and complete in every Article 9 from being misleading or which may otherwise be material respect and do not omit a material fact that would otherwise make to the information, document or statement misleading;other Party.
Appears in 1 contract
Samples: Property Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Execution Date and the Effective Date:
(a) 9.1.1. it is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the all requisite corporate power and authority to enter into this Agreement and the BMS Sublicense and to perform its obligations hereunderunder this Agreement and the BMS Sublicense;
(c) 9.1.2. execution of this Agreement and the BMS Sublicense and the performance by such Party of its execution obligations hereunder have been duly authorized;
9.1.3. this Agreement and the BMS Sublicense has been duly executed and delivered on behalf of such Party, and is legally binding and enforceable on each Party in accordance with its terms;
9.1.4. the execution, delivery and performance do of this Agreement and the BMS Sublicense by such Party does not violate or conflict with Applicable any agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound, nor violate any Law;
9.1.5. neither such Party, nor any provision of its constituent documentsemployees, officers, subcontractors, or consultants who have rendered services relating to the Licensed Compounds or Licensed Products: (a) has ever been debarred or is subject to debarment or convicted of a crime for which an entity or person could be debarred by the FDA under 21 U.S.C. Section 335a or (b) has ever been under indictment for a crime for which a person or entity could be so debarred;
9.1.6. neither such Party nor any contract binding of its Affiliates, nor, to its Knowledge, its or their respective directors, officers, employees, distributors, agents, representatives, sales intermediaries, or other Third Parties acting on or affecting it behalf of such Party or any of its assets or Affiliates performing services under this Agreement:
(a) has taken any order or judgment action in violation of any Governmental Authority applicable to it Anti-Corruption Laws or its assets;Healthcare Laws; or
(db) all governmental and other authorizationshas corruptly offered, approvalspaid, consentsgiven, notices and filings that are required promised to have been obtained pay or submitted by it with respect to entering into and performing this Agreement have been obtained give, or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legalauthorized the payment or gift of anything of value, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy directly or similar laws affecting creditors’ rights generally and subject, as to enforceabilityindirectly, to equitable principles any Government Official, for the purposes of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on influencing any communication (written act or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions decision of any Transaction will not be considered investment advice Government Official in his or a recommendation her official capacity; (ii) inducing such Government Official to enter into that Transaction;
do or omit to do any act in violation of his or her lawful duty; (jiii) it has made its own independent trading and investment decisions securing any improper advantage; or (iv) inducing such Government Official to enter into each transaction and as do or omit to whether such transaction is appropriate do any act in violation of his or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)her lawful duty.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Collaboration and License Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatother, as of the Effective Date, as follows:
(a) it such Party is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization, and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
(b) it has the power execution and authority to enter into delivery of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorized by all necessary corporate action and will not violate: (i) such Party’s certificate of incorporation or bylaws, (ii) any agreement, instrument or contractual obligation to perform which such Party is bound in any material respect, (iii) any requirement of any Applicable Laws, or (iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party; [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(c) this Agreement is a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms and conditions;
(d) such Party is not under any obligation, contractual or otherwise, to any person or entity that conflicts with or is inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder;
(ce) its execution and performance do not violate or conflict with Applicable Lawto such Party’s knowledge, any provision all of its constituent documentsemployees, or any contract binding on or affecting it or any officers, contractors, and consultants have executed agreements requiring assignment to such Party of its assets or any order or judgment all Inventions made during the course of any Governmental Authority applicable and as a result of their association with such Party and obligating each such employee, officer, contractor, and consultant to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, maintain as to enforceability, to equitable principles confidential the Confidential Information of general application regardless of whether enforcement is sought in a proceeding in equity or at law;such Party; and
(f) no Event of Defaultneither such Party, or Potential Event of Default, has occurred and is continuing, and none will occur as a result nor any of its entering into employees, officers, subcontractors or performing this Agreement consultants who have rendered or any Transaction;
(g) it is not relying upon any representations of will render services relating to the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
Product: (i) it has ever been debarred (or is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Partiesdebarment) or convicted of a crime for which an entity or person could be debarred under 21 U.S.C. Section 335a or its foreign equivalent or (ii) has ever been under indictment for a crime for which a person or entity could be debarred under any such provision.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:: -------------------------------------
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organizationand, if relevant under such laws, in good standing;
(b) it It has the corporate, governmental and/or other legal capacity, authority and power to execute, deliver and authority to enter into this Agreement and to perform its obligations hereunder, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution Such execution, delivery and performance do not violate or conflict with Applicable Lawany law applicable to it, any provision of its constituent constitutional documents, any order or judgment of any court or other agency of government applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing Its obligations under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) constitute its obligations hereunder are legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ ' rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(fe) no No Event of DefaultDefault with respect to it, or Potential event which with notice and/or lapse of time would constitute such an Event of Default, has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
(f) There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations hereunder;
(g) it It is not relying upon any representations of or the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisethis Agreement;
(h) it It has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it this Agreement based upon its own judgment and any advice from such advisors as it has deemed necessary necessary, with a full understanding of the material terms and not in reliance upon any view expressed by the other Party;risks thereof, and is capable of assuming those risks; and
(ki) it The other Party has not received from the other Party given to it any assurance, assurance or guarantee or promise as to the expected financial performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability result of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that(as of each of the 2012 Effective Date, the 2013 Effective Date, the 2014 Effective Date and the 2015 Date) as follows:
(ai) it is a corporation duly organized and validly existing under the laws of the jurisdiction state or country of its incorporation or organizationincorporation;
(bii) it has the power and authority right to enter into this Agreement (and the stated amendments thereof) and to perform its obligations hereunder;
(ciii) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have (and the stated amendments thereof) has been obtained or submitted duly authorized, executed and are in full force delivered by such party and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid and binding, binding obligation of such party enforceable against such party in accordance with their respective termsits terms except as enforceability may be limited by applicable bankruptcy, subject to applicable bankruptcy insolvency, reorganization, receivership, moratorium, fraudulent transfer, or other similar laws affecting creditors’ the rights and remedies of creditors generally and subject, as to enforceability, to equitable by general principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawequity;
(fiv) the execution, delivery and performance of this Agreement (and the stated amendments thereof) by such party do not conflict with any agreement, instrument or understanding, oral or written, to which such party is a party or by which such party may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having authority over such party:
(v) all consents, approvals and authorizations from all governmental authorities or other third parties required to be obtained by such party in connection with the execution and delivery of this Agreement (and the stated amendments thereof) have been obtained;
(vi) no Event of Defaultperson or entity has or will have, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing the transactions contemplated by this Agreement (and the stated amendments thereof), any right, interest or valid claim against or upon such party for any Transaction;commission, fee or other compensation as a finder or broker because of any act by such party or its agents; and
(gvii) neither it is not relying upon nor any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it Affiliates has entered hereinto into any agreement with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator third party that is likely to materially adversely affect in conflict with the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party in connection with party pursuant to this Agreement are true, accurate (and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;stated amendments thereof).
Appears in 1 contract
Samples: Commercial License Agreement (Sage Therapeutics, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that:
(a) (status) it is and each of its subsidiaries are duly organized and validly existing under the laws of incorporated in the jurisdiction of its incorporation or organizationregistration;
(b) (power) it has the power full legal capacity and authority power:
(i) to own its property and to carry on its business; and
(ii) to enter into this Agreement deed and to perform its obligations hereundercarry out the transactions that it contemplates;
(c) (corporate authority) it has taken all corporate action that is necessary or desirable to authorise its entry into this deed and its carrying out the transactions that it contemplates;
(d) (Authorisations) it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this deed and to carry out the transactions that it contemplates;
(ii) ensure that this deed is legal, valid, binding and admissible in evidence; or
(iii) enable it to properly carry on its business as it is now being conducted, and it is complying with any conditions to which any of these Authorisations is subject;
(e) (document effective) this deed constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors' rights generally), subject to any necessary stamping or registration; and
(f) (no contravention) neither its execution and performance do not violate of this deed nor the carrying out by it of the transactions that it contemplates, does or conflict with Applicable Law, will:
(i) contravene any provision of its constituent documents, or any contract binding on or affecting law to which it or any of its assets property is subject or any order or judgment of any Governmental Authority applicable to Government Agency that is binding on it or any of its assetsproperty;
(dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withcontravene any Authorisation;
(eiii) contravene any undertaking or instrument binding on it or any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawproperty;
(fiv) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of contravene its entering into or performing this Agreement or any Transaction;constitution; or
(gv) require it is not relying upon to make any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent payment or delivery in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions respect of any Transaction will not be considered investment advice financial accommodation or a recommendation to enter into that Transaction;
(j) financial instrument before it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;be obliged to do so.
Appears in 1 contract
Samples: Share Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other thatparty as follows and acknowledges that the other party is relying upon such representations and warranties in connection with entering into this Agreement:
(a) it is duly organized incorporated and validly existing under the laws of the its respective jurisdiction of incorporation and has the corporate power and capacity to own, lease and operate its incorporation or organizationproperties and assets and to carry on its business as is now being carried on by it;
(b) it has the corporate power and authority to enter into and perform its obligations under this Agreement and to perform consummate the transactions contemplated herein and, in the case of Wildcat, in the Plan of Arrangement and this Agreement has been duly authorized, executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its obligations hereunderterms, subject to bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and the availability of equitable remedies;
(c) its execution the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Plan of Arrangement do not violate and will not (nor will they with the giving of notice or conflict with Applicable Lawthe lapse of time or both): (i) contravene, breach or result in any provision of its constituent documentsdefault under any Laws applicable to it, or any contract binding on or affecting it or any of its properties or assets (subject to compliance with any Laws contemplated by this Agreement); (ii) contravene, breach or result in any order default under its constating documents or judgment by-laws; (iii) contravene, breach or result in any default under or termination of, or accelerate or permit the acceleration of the performance required by, any material agreement, covenant, undertaking, commitment, instrument, licence or permit to which it is a party or by which it is bound or to which the property or assets of it is subject; or (iv) result in the cancellation, suspension or material alteration in the terms of any Governmental Authority applicable to material licence, permit or authority held by it or in the creation of any lien, charge, security interest or encumbrance upon any of its properties or assets;; and
(d) it is conducting its businesses in compliance, in all governmental material respects, with all Laws of each jurisdiction in which its business is carried on and other authorizationshas obtained all licenses, approvals, consents, notices permits and filings that are required concessions necessary to have been obtained or submitted carry on business as now being carried on by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)it.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Purchaser hereby represents and warrants to the other MxXxxx Parties (which representations and warranties will survive the Closing) and each of the MxXxxx Parties hereby represents and warrants to Purchaser (which representations and warranties will survive the Closing) that:
(a) it has the requisite corporate power, legal capacity and competence to enter into and execute this Agreement and each Transaction Document to which it is a party and to take all actions required or transactions contemplated pursuant hereto and thereto and it is duly organized incorporated and validly existing subsisting under the laws of the its jurisdiction of its incorporation or organizationincorporation;
(b) it has taken all corporate steps and proceedings necessary to duly approve the power and authority to enter into transactions contemplated by this Agreement and each Transaction Document to perform which it is a party, and all necessary approvals and consents by its obligations hereunderdirectors, shareholders and others have been obtained to authorize execution and performance of this Agreement and each Transaction Document to which it is a party on behalf of it, and in the case of the Company, the Company has obtained a written consent in respect of the transfer of the Purchased Shares contemplated hereunder signed by all of the shareholders of the Company in accordance with the Shareholder Agreement;
(c) its execution the entering into of this Agreement and performance each Transaction Document to which it is a party and the transactions contemplated hereby and thereby do not violate or conflict with Applicable Lawresult in the violation of any of the terms and provisions of any law applicable to, any provision of its constituent documentsor, or any contract binding on or affecting if applicable, the constating documents of, it or any of its assets or any order or judgment of any Governmental Authority applicable agreement, written or oral, to which it may be a party or its assets;by which it is or may be bound; and
(d) all governmental it has duly executed and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing delivered this Agreement have been obtained and each Transaction Document to which it is a party and each such agreement or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, document constitutes a valid and binding, binding agreement of it enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (a) Each Party represents and warrants to the other other, as of the Effective Date, and covenants (as applicable), that:
(ai) it is duly organized incorporated and organized, validly existing and in good standing under the laws of the its jurisdiction of incorporation, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(bii) it has the full right, corporate power and authority to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(ciii) its execution this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with the terms hereof;
(iv) the execution, delivery and performance do not of this Agreement by such Party has been duly authorized by all necessary corporate action of such Party and does not: (a) violate or any Applicable Law; nor (b) conflict with Applicable Lawor constitute a default under any agreement, any provision of its constituent documentsinstrument or understanding, oral or any contract binding on or affecting written, to which it or any of its assets Affiliates is a party or any order or judgment of any Governmental Authority applicable to by which it or its assetssuch Affiliates may be bound; nor (c) conflict with or violate such Party’s corporate charter and bylaws;
(dv) all governmental and other authorizations, approvals, no consents, notices approvals or authorizations under Applicable Law or from Third Parties (including Governmental Entities) (except for any Intellectual Property rights, INDs, Regulatory Approvals, Manufacturing- related approvals or similar approvals necessary for Manufacture or having Manufactured in the Field for the Territory, or Research, Development, Commercialization or other Exploitation in the Field in the Territory, of Development Compound and filings that the Product as set forth herein) are required to have been be obtained or submitted by it in connection with respect to entering into the execution, delivery and performing performance of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withAgreement;
(evi) Neither Party nor any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, Affiliates has been debarred or is subject to applicable bankruptcy debarment and, neither Party nor any of its Affiliates is aware of any Person involved in the Research or similar laws affecting creditors’ rights generally and subjectDevelopment of the Development Compound or Product that has been debarred pursuant to Section 306 of the FDCA, as to enforceabilityamended, or any comparable law in any country, or that is the subject of a conviction described in such section or any comparable law in any country; and
(vii) each Party’s (and each Party’s Affiliates’) employees, directors and officers have assigned, or will assign, to equitable principles such Party all of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Defaulttheir right, or Potential Event of Default, has occurred and is continuingtitle, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or interest in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received Intellectual Property arising from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability performance of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and under this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Collaboration and License Agreement (Shattuck Labs, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (1) Each Party represents and warrants to the other Party that, except as set out in Schedule 2:
(a) it is duly organized and validly existing under the laws formed in its place of the jurisdiction of its incorporation or organization;
(b) it has the power full legal capacity and authority power:
(i) to own its property and assets and to carry on its business as currently carried on; and
(ii) to enter into this Agreement and to perform its obligations hereunderunder this Agreement subject to compliance with applicable securities laws and regulatory requirements;
(c) it has taken all corporate action that is necessary to authorize its execution entry into this Agreement and to perform its obligations under this Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy subject to laws generally affecting creditors' rights and to principles of equity;
(e) the execution, delivery and performance do by it of this Agreement does not violate or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Law, or result in a breach of or default under:
(i) its constitution or other constating documents;
(ii) any material term or provision of its constituent documentsany security arrangement, undertaking, agreement or deed; or
(iii) any contract binding on writ, order or affecting injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at lawbound;
(f) no Event of Defaultlitigation, arbitration, mediation, conciliation or Potential Event of Defaultadministrative proceedings are taking place, has occurred and is continuingpending or, and none will occur as a result to the best of its entering into knowledge, threatened against it which if adversely decided could, in the reasonable opinion of the Party's management, have a material adverse effect on the Party's business, assets or performing financial condition such as to materially impair its ability to perform its obligations under this Agreement or any Transactionother than, with respect to BMR, [REDACTED: Summary of threatened legal action.];
(g) no liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator is currently appointed in relation to it is not relying upon or any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwiseproperty;
(h) to the best of its knowledge after making due enquiry, there are no facts, matters or circumstances which give any person the right to appoint or to apply to appoint (as the case may be) a liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator to it has entered hereinto with a full understanding or any of the material terms and risks of the same, and it is capable of assuming those risks;its property; and
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions unaware of any Transaction will not be considered investment advice material facts or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements circumstances that have not been furnished disclosed in writing by or on behalf of it this Agreement, which should be disclosed to the other Party in connection with order to prevent the representations and warranties in this section 2.1(1) from being materially misleading.
(2) The representations and warranties given in and under section 2.1(1) will be treated as made and be binding upon each Party continuously during the term of this Agreement and each Party must immediately notify the other Party if any of its representations and warranties set out in section 2.1(1) are true, accurate not true and complete correct in every any material respect and do not omit a material fact that would otherwise make at any time during the information, document or statement misleading;term of this Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the ; meaning of United States Bankruptcy Code §101(26101(25), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(aA) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction under which it is organized, and is authorized to do business in the State of its incorporation or organizationTexas;
(bB) it has the full power and authority to enter into this Agreement and to perform its obligations hereunderall of the specified obligations, representations, warranties, and covenants under this Agreement;
(cC) its execution the execution, delivery, and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted duly authorized by all requisite action of its governing body, and are in full force the Person signing this Agreement on its behalf was duly authorized to execute and effect and all conditions thereof have been complied withdeliver this Agreement on its behalf;
(eD) its obligations hereunder are legalit has obtained, valid or shall obtain prior to beginning performance under this Agreement, all licenses, registrations, certifications, Permits, and bindingother authorizations; and has taken, enforceable in accordance or shall take prior to beginning performance under this Agreement, all actions required by applicable laws or governmental regulations with their respective termsthe exception of licenses, subject to applicable bankruptcy registrations, certifications, Permits, or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawother authorizations that do not materially affect performance under this Agreement;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(gE) it is not relying upon in violation of any representations contracts, laws, ordinances, or governmental rules, regulations, or orders of the other Party other than those expressly set forth herein, any governmental authority or arbitration board materially affecting performance of this Agreement and to which it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisesubject;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(iF) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation bankrupt, does not contemplate becoming bankrupt nor, to enter into a transactionits knowledge, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transactionbecome bankrupt;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(mG) it is a “forward contract merchant” within solely responsible for keeping itself informed of and understanding its respective responsibilities under the meaning of United States Bankruptcy Code §101(26)Governing Rules and the ERCOT Operating Guides, and this Agreement any laws, rules, regulations, and all Transactions hereunder constitute “forward contracts” within tariffs approved by any governmental authority with jurisdiction over the meaning of United States Bankruptcy Code §101(26).matters specified herein; and
(nH) it is an “eligible commercial entity”acknowledges and affirms that the foregoing representations, warranties, and an “eligible contract participant” within covenants are continuing in nature throughout the meaning term of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Partiesthis Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Agreement to Provide Qse and Marketing Services (Commerce Energy Group, Inc.)
Mutual Representations and Warranties. On the Effective Date Licensor and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
(a) 8.1.1. it is a corporation or limited liability company (as applicable) duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
8.1.2. the execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (a) such Party’s charter documents, bylaws or other organizational documents; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
any requirement of any Applicable Law; or (c) its execution and performance do not violate any order, writ, judgment, injunction, decree, determination or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment award of any Governmental Authority court or governmental agency presently in effect applicable to it or its assetssuch Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing 8.1.3. this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding in equity at law or at lawequity);
(f) no Event 8.1.4. it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations that would impede the diligent and complete fulfillment of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;; and
(m) 8.1.5. neither it nor any of its Affiliates has been debarred or is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the Parties.
(o) all applicable informationservices or activities to be performed under this Agreement, documents any Person who has been debarred pursuant to Section 306 of the FFDCA or statements that have been furnished who is the subject of a conviction described in writing by or on behalf of it to such section. It will inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services or activities hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date Each of Hutchmed and on each Trade Date, each Party Epizyme hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is a corporation or entity duly organized and validly existing under the laws Applicable Laws of the nation, state, municipality, province, administrative division or other jurisdiction of its incorporation or organizationformation;
(b) the execution, delivery and performance of this Agreement by it has been duly authorized by all requisite corporate action;
(c) it has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and such performance do does not violate or conflict with Applicable Law, any provision or constitute a breach of its constituent documents, or any contract binding on or affecting it or any of its assets or agreements with any order or judgment of any Governmental Authority applicable to it or its assetsThird Party;
(d) all governmental it has the right to grant the rights and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing licenses described in this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withAgreement;
(e) its obligations hereunder are legal, valid and binding, enforceable it has not made any commitment to any Third Party in accordance conflict with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ the rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;granted by it hereunder;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuingits, and none will occur its Affiliates’ employees have executed agreements requiring automatic assignment to such Party of all inventions (whether or not patentable) or other Know-How identified, discovered, authored, developed, conceived or reduced to practice during the course of and as a the result of their employment with such Party or its entering into Affiliates, and all intellectual property rights therein (other than intellectual property rights constituting improvements to any such employee’s background intellectual property), and obligating the relevant individual or performing entity to maintain as confidential such Party’s confidential information related to any Licensed Compound or Licensed Product as well as confidential information of other parties (including Epizyme and any other Epizyme Entity or Hutchmed and any other Hutchmed Entity, as applicable) which such individual or entity may receive, to the extent required to support such Party’s obligations under this Agreement or any TransactionAgreement;
(g) it to its knowledge, no consent, approval or agreement of any person or Governmental Authority is not relying upon any representations required to be obtained in connection with the execution and delivery of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;this Agreement; and
(h) it has entered hereinto with not been debarred by the FDA, is not the subject of a full understanding conviction described in Section 306 of the material terms and risks of the sameFD&C Act, and it is capable of assuming those risks;
(i) it is has not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed been excluded by the other Party;
Office of Inspector General (k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26OIG”), and this Agreement and all Transactions hereunder constitute is not subject to any similar sanction of any other Governmental Authority outside of the U.S., including revocation or suspension of any business license or relevant pharmaceutical enterprise permits or approvals by the State Administration of Market Regulation (SAMR), the NMPA, or other Regulatory Authority in Mainland China, as applicable or otherwise “forward contractsblacklisted” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”by such Regulatory Authority in Mainland China, and an “eligible contract participant” within neither it nor any of its Affiliates has used, in any capacity, any person or entity who either has been debarred by the meaning FDA, is the subject of United States Commodity Exchange Act §§1a(11) and 1a(12)a conviction described in Section 306 of the FD&C Act, respectivelyexcluded by the OIG, and all Transactions hereunder have been or is subject to individual negotiation by any such similar sanction inside or outside of the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;U.S.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;; 32 NTD: IPA Act Section 1-75(c)(1)(G)(iv)(3)(E)(iii): “Permission for the ability of a contract holder to substitute projects with other waitlisted projects without penalty should a project receive a non-binding estimate of costs to construct the interconnection facilities and any required distribution upgrades associated with that project of greater than 30 cents per watt AC of that project's nameplate capacity.”
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Samples: Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On Each party hereto hereby makes the Effective Date following representations and on each Trade Date, each Party represents and warrants warranties to the other thatparty hereto:
(a) it i. It is duly organized and validly existing existing, in good standing under the laws of the its jurisdiction of its incorporation or organization;.
(bA) it It has the full power and authority to enter into this Agreement and to perform its obligations hereunder;
consummate the transactions contemplated hereby, and (cB) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the person who has executed this Agreement have been obtained on its behalf is duly authorized to do so and thereby bind the party on whose behalf he or submitted and are in full force and effect and all conditions thereof have been complied with;she is purporting to act.
(e) iii. This Agreement is its obligations hereunder are legal, valid and bindingbinding agreement, enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and subject, as to enforceability, to equitable by general principles of general application equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement is sought whatever consideration in a proceeding in equity or at law;.
iv. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate, result in a breach of any of the terms or provisions of, constitute a default (for any event that, with the giving of notice or the passage of time or both would constitute a default) no Event of Defaultunder, accelerate any obligations under, or Potential Event of Defaultconflict with, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) its charter, articles or certificate of incorporation, partnership agreement or bylaws (or other organizational documents), if applicable, or any agreement, indenture or other instrument to which it is not relying a party or by which it or its properties are bound, (ii) any judgment, decree, order or award or any court, governmental body or arbitrator to which it is subject or (iii) any law, rule or regulation applicable to it.
v. Neither party is consummating this Exchange “on any communication the basis of” (written or oral) as defined in Rule 10b5-1 of the other Party Exchange Act) any material, non-public information about the Company; provided, however, that the Holder acknowledges that, as investment advice disclosed in the Company’s filings with the SEC, the Company is currently exploring its strategic alternatives, including without limitation, merger with or as a recommendation acquisition by another company and liquidation. The Holder further acknowledges that the ability of the Company to enter into or close a strategic transaction, and understands that information and explanations related to the terms and conditions timing of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;uncertain
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Second Restatement Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, that:
17.1.1 it is (ai) an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, and (ii) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all material governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement and that could reasonably be expected to result in a Material Adverse Change; ny-1664023
17.1.8 it has entered into the Transaction Documents and will enter into any Transaction;
transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) it has not received from the other Party Transaction Documents and any assurancetransaction, guarantee or promise as to understands and accepts the expected or projected successterms, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderconditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder;
(l) there 17.1.10 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.11 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 1 contract
Samples: Inventory Intermediation Agreement (PBF Energy Co LLC)
Mutual Representations and Warranties. On the Effective Date Each of Galderma and on each Trade Date, each Party Sol-Gel hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction of in which it is incorporated or organized, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(bi) it has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (iii) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(c) it is not a party to any agreement that would prevent it from granting the rights granted to the other Party under this Agreement or performing its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsobligations under this Agreement;
(d) all governmental and other authorizationsno consent, approvals, consents, notices and filings that are approval or agreement of any person or Governmental Authority is required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withAgreement;
(e) its obligations hereunder are legalnone of such Party’s employees, valid and bindingconsultants or contractors has been debarred by the FDA, enforceable is the subject of a conviction described in accordance with their respective termsSection 306 of the FD&C Act, or is subject to applicable bankruptcy any similar sanction of any other Governmental Authority outside of the U.S., and neither it nor any of its Affiliates has used, in any capacity, any person or entity who either has been debarred by the FDA, is the subject of a conviction described in Section 306 of the FD&C Act or is subject to any such similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles sanction inside or outside of general application regardless of whether enforcement is sought in a proceeding in equity or at law;the U.S.; and
(f) no Event it is not aware of Default, any Government Official or Potential Event Other Covered Party having any financial interest in the subject matter of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacityway personally benefiting, fiduciary directly or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the sameindirectly, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other thatParty as follows:
(a) it 9.1.1. It is a corporation duly organized and validly existing under the laws law of the jurisdiction of its incorporation or organizationin which it is incorporated;
(b) it 9.1.2. It has the corporate and legal right, title, power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 9.1.3. It has all necessary corporate and any other approvals for execution, delivery and performance of this Agreement;
9.1.4. Upon execution and performance do not violate or conflict with Applicable Lawdelivery, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, shall constitute a valid and bindingbinding obligation of it, enforceable in accordance with their respective its terms, subject to except as enforceability may be limited by applicable bankruptcy bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and subject, except as enforceability may be subject to enforceability, to equitable general principles of general application equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law), to the extent that these laws cannot be and are not contracted out by the terms of this Agreement;
(f) no Event 9.1.5. The execution, delivery and performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement will not conflict in any way with the terms of any other agreement or instrument to which it is or becomes a party or by which it is or becomes bound, nor violate any Transactionlaw or regulation or decision of any court, governmental body or administrative or other agency having authority over it;
(g) it is not relying upon any representations of the other 9.1.6. The persons executing this Agreement on its behalf are duly authorized to do so and by so doing have bound such Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it this Agreement; and [***] Certain information in this document has made its own independent trading been omitted and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as submitted separately to the expected Securities and Exchange Commission. Confidential treatment has been requested separately with respect to the omitted portions.
9.1.7. There is no action, suit, investigation or projected successproceeding pending against, profitabilityor to its knowledge, returnthreatened against or affecting it before any court, performancearbitrator or any governmental authority, resultincluding but not limited to regulatory authorities, effectthat in any manner challenges or seeks to prevent, consequence enjoin, alter or benefit (either economicmaterially delay the contemplated transactions, legaland, regulatoryto its knowledge, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending reasonably valid basis for any such action, suit investigation or proceeding to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)be brought.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party hereto that:
(a) If it is a body corporate, that it is duly incorporated or continued and duly organized and validly existing subsisting under the laws of its organizational jurisdiction, or in the jurisdiction case of its incorporation or organizationthe Optionors, is an individual of legal age;
(b) it has the full right, power and authority to carry on its business and to enter into and accept the terms of this Agreement and to perform carry out the transactions contemplated herein, and in the case of the Optionors, has the legal capacity and competence to enter into and execute this Agreement;
(c) it has duly obtained all necessary governmental, corporate, shareholder and other authorizations for its execution and performance of this Agreement,
(d) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein will, with the giving of notice or the passage of time, or both, conflict with, result in the breach of, constitute a default under, or result in the creation of any encumbrances on its assets under the terms or provisions of any law applicable to it or accelerate the performance required by, its constating documents, any resolution of its directors or shareholders, as applicable, or any indenture, agreement or other instrument to which it is a party or by which it or its assets may be bound;
(e) the execution and delivery of this Agreement does not violate or result in the breach of the laws of any jurisdiction applicable to a Party or pertaining thereto or of its organizational documents, as applicable;
(f) in the case of the Optionee, all corporate authorizations have been obtained for the execution of this Agreement and for the performance of its obligations hereunder;
(cg) its execution no proceedings are pending for and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment no Party is aware of any Governmental Authority applicable basis for the institution of any proceedings leading to it the dissolution or its assets;winding-up of such Party or the placing of such Party into bankruptcy or subject to any other laws governing the affairs of insolvent persons; and
(dh) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid and binding, binding obligation of the Party enforceable against it in accordance with their respective termsits terms except as enforcement thereof may be limited by bankruptcy, subject to applicable bankruptcy insolvency or similar other laws affecting the enforcement of creditors’ ' rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related subject to the terms and conditions qualification that equitable remedies may only be granted in the discretion of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability court of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)competent jurisdiction.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other that:
(a) it is a corporation duly organized and organized, validly existing and, if relevant in its jurisdiction of organization, in good standing under the laws of the its jurisdiction of its incorporation or organization;
(b) it organization and has the all requisite power and authority to enter into this Agreement and to perform its obligations hereunder;
(b) the execution, delivery and performance by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized and approved by all necessary corporate or equivalent action on its part;
(c) this Agreement has been duly executed and delivered by it and constitutes its execution legal, valid and performance do not violate or conflict binding obligation, enforceable against it in accordance with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsterms;
(d) all governmental the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted performance by it with respect to entering into and performing of this Agreement have been obtained and the consummation by it of the transactions contemplated hereby do not and will not: (i) violate any Applicable Laws; (ii) conflict with, or submitted and result in the breach of any provision of its organizational documents; (iii) result in the creation of any lien or encumbrance of any nature upon any property being transferred by it pursuant to this Agreement; or (iv) violate, conflict with, result in the breach or termination of, or constitute a default under (or event which, with notice, lapse of time or both, would constitute a default under) any permit, contract or agreement to which it is a party or by which any of its properties or businesses are in full force and effect and all conditions thereof have been complied withbound;
(e) its obligations hereunder are legalno authorization, valid consent or approval of, or notice to or filing with, any Person is required for the execution, delivery and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, performance by it of this Agreement (excluding approvals of Regulatory Authorities as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;contemplated herein); and
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result neither it nor any of its entering into or performing this Agreement or any Transaction;
(g) it Affiliates is not relying upon any representations of debarred under the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by FFDCA or on behalf the U.S. Department of it to Health and Human Service’s List of Excluded Individuals/Entities or the other Party in connection with this Agreement are true, accurate U.S. General Services Administration’s Lists of Parties Excluded from Federal Procurement and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Non-Procurement Programs.
Appears in 1 contract
Samples: Exclusive Development and Distribution Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party Parties hereby represents and warrants to the other thatParty as follows:
(a) 11.1.1 As of the Restated Effective Date, it is duly organized and validly existing under the laws Laws of the its jurisdiction of its incorporation or organization;
(b) and it has the full corporate power and authority and has taken all corporate action necessary to enter into and perform this Agreement;
11.1.2 As of the Restated Effective Date, this Agreement is a legal and to perform its obligations hereunder;
(c) its execution valid obligation binding upon such Party and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective its terms; the execution, subject delivery and performance of the Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, by which it is bound, nor to applicable bankruptcy its knowledge as of the Restated Effective Date violate any Law; and the person or similar laws affecting creditors’ rights generally and subjectpersons executing this Agreement on such Party’s behalf have been duly authorized to do so by all requisite corporate action;
11.1.3 To its knowledge, as to enforceabilityof the Restated Effective Date no government authorization, to equitable principles consent, approval, license, exemption of general application regardless of whether enforcement or filing or registration with any court or Governmental Authority, under Law, is sought in a proceeding in equity or at law;
(f) no Event of Defaultshall be necessary for, or Potential Event of Defaultin connection with, has occurred and is continuing, and none will occur as a result of its the entering into or performing of this Agreement or the transaction contemplated by this Agreement, or (except for FDA or other Regulatory Approvals, licenses, clearances and the like necessary for the research, Development, conduct of Medical Affairs Activities with respect to, Manufacture, sales or marketing of pharmaceutical products and except for any Transactionrequired filing with the U.S. Securities and Exchange Commission) for the performance by it of its obligations under this Agreement;
(g) it is not relying upon any representations 11.1.4 As of the other Party other than those expressly set forth hereinRestated Effective Date, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from been debarred or excluded or the other Party subject of debarment or exclusion proceedings by any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderGovernmental Authority;
(l) there is no pending or to 11.1.5 To its knowledge threatened litigationknowledge, arbitration or administrative proceeding before as of the Restated Effective Date, it and its Affiliates have not committed any Governmental Authority or any arbitrator that is likely to materially adversely affect Material Anti-Corruption Law Violation, other than, in the ability case of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within Novartis, the meaning activities identified in the Settlement Agreement entered into between Novartis and the Office of the Inspector General of the United States Bankruptcy Code §101(26), Health and this Agreement and all Transactions hereunder constitute “forward contracts” within Human Services in the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, Department of Justice in September 2010 and an “eligible contract participant” within the meaning Settlement Agreement entered into between Novartis and the Office of the Inspector General of the United States Commodity Exchange Act §§1a(11) Health and 1a(12)Human Services in the United States Department of Justice in November 2015 and, respectivelyin the case of Amgen, the mis-promotion activities preceding the Corporate Integrity Agreement, entered into between Amgen and all Transactions hereunder have been subject to individual negotiation by the Parties.Office of the Inspector General of the United States Health and Human Services in the United States Department of Justice in December 2012; and
(o) all applicable information11.1.6 As of the Restated Effective Date, documents or statements that have been furnished in writing by or on behalf of it to the other Party has not knowingly used in connection with the conduct of Medical Affairs Activities, Manufacture or Commercialization to take place pursuant to this Agreement are trueany employee, accurate and complete in every material respect and do not omit a material fact consultant or investigator that would otherwise make has been debarred, excluded or disqualified or the informationsubject of debarment, document exclusion or statement misleading;disqualification proceedings by any Governmental Authority.
Appears in 1 contract
Samples: Collaboration Agreement (Amgen Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Samples: Master Renewable Energy Credit Purchase and Sale Agreement
