Representations and Agreements of the Company. The Company represents and warrants to the Bank as of the date hereof and as of the Closing Date, and agrees with the Bank, that:
(a) the Company has taken all necessary corporate action to authorize each of the Transaction Documents and the consummation of the Transactions;
(b) each of the Transaction Agreements has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, except as may be limited by applicable bankruptcy, insolvency or similar laws relating to or affecting the rights and remedies of creditors or by equitable principles, and except as rights of indemnity or contribution may be limited by applicable law;
(c) (i) not later than the first day of the Election Period, the Company shall duly file with the Commission a Statement on Schedule TO (the “Statement”) pursuant to Rule 13e-4 promulgated by the Commission under the Exchange Act, a copy of which Statement (including the documents required to be filed as exhibits thereto) in the form in which it is to be so filed has been furnished to the Bank; (ii) the Statement as so filed and as amended from time to time shall comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder, except to the extent described in the No-Action Letters; and (iii) neither the Statement as filed or as amended from time to time nor any other Transaction Disclosure Material as filed or as amended or supplemented from time to time shall contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, except that the Company makes no representation or warranty with respect to any statement contained in, or any omission from, any Transaction Disclosure Material based upon information furnished in writing by the Bank to the Company expressly for use therein;
(d) the consummation of the Option Liquidity Program, the issuance by the Company of the shares of the relevant class of Common Stock to be issued upon exercise of the JPMorgan Options (the “Option Shares”) and the execution, delivery and performance by the Company of its obligations under the Transaction Agreements will not result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, ex...
Representations and Agreements of the Company. The Company represents that all corporate actions on the part of the Company, its officers, directors, managers and equity holder necessary for the sale and issuance of this Warrant have been taken.
Representations and Agreements of the Company. The Company represents to and agrees with the Placement Agent that, as of the date hereof and the Closing Date:
Representations and Agreements of the Company. The Company represents to the Manager that the Company has all necessary power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby, and such execution, delivery and performance will not violate any applicable law, rule, regulation, governing document (e.g., Certificate of Incorporation or Bylaws), contract or other material agreement binding upon the Company. If Appendix A is applicable, the Company makes such representations and warranties as are set forth therein.
Representations and Agreements of the Company. Individual's agreement to assent to and execute this Release is expressly contingent upon the representation of the Company that, assuming Individual's compliance with the provisions of the Separation Agreement and this Release and the accuracy of his representations in the Separation Agreement and this Release, as of the Separation Date, neither it nor any of its Subsidiaries intends to make any claim or file suit or other action against Individual. The Company agrees, on its own behalf and on behalf of its Subsidiaries, not to make any claim or bring or join any lawsuit against Individual in any court (except as necessary to protect the rights of the Company and the other Released Parties under this Release) to the extent that such claim or lawsuit is predicated on matters known at the Separation Date by the Audit Committee or the Nominating, Governance and Compensation Committee of the Board and relating to Individual's employment, membership on the Board, events occurring during Individual's employment or membership on the Board, or the termination of Individual's employment or membership on the Board. The Company represents that, as of the Separation Date, neither it nor any of its Subsidiaries has brought or joined any lawsuit or filed any charge or claim against Individual in any court or before any government agency and has made no assignment of any rights that the Company or any of its Subsidiaries has asserted or may have against Individual to any person or entity.
Representations and Agreements of the Company. The Company represents and warrants to and agrees with each Purchaser as follows:
Representations and Agreements of the Company. The Company represents and warrants to, and agrees with, each Holder that (i) each document or report (a "Disclosure Document") filed by the Company with the SEC since December 31, 1997 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of the date of the filing thereof with the SEC, conformed in all material respects to the requirements of the Exchange Act, and the rules and regulations thereunder and, as of the date of such filing, such Disclosure Document did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the Company has issued and sold the Notes and the Series C, D and E Preferred Stock, and has not granted any registration rights with respect to the Series C, D or E Preferred Stock or the securities into which such preferred stock is convertible and (iii) the capitalization of the Company, including its authorized capital stock and the number of shares issued and outstanding, is set forth on Exhibit B hereto.
Representations and Agreements of the Company. The Company represents, warrants and covenants that, as of the closing of the Initial Public Offering:
(a) the Company is a “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Securities Act, and the Company shall promptly notify the Manager if the Company ceases to be a QIB;
(b) the Company is a “qualified eligible person” (“QEP”) as defined in Commodity Futures Trading Commission Rule 4.7 (“CFTC Rule 4.7”), and the Company will promptly notify the Manager if the Company ceases to be a QEP, and hereby consents to be treated as an “exempt account” under CFTC Rule 4.7; and
(c) the assets in any account of the Company or any Subsidiary are free from all liens and charges, and the Company undertakes that no liens or charges will arise from the act or omissions of the Company which may prevent the Manager from giving a first priority lien or charge on the assets solely in connection with the Manager’s authority to direct the deposit of margin or collateral to the extent necessary to meet the obligations of any account of the Company or any Subsidiary with respect to any investments made pursuant to the Guidelines.
Representations and Agreements of the Company. The Company represents to the Manager that the Company has all necessary power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby, and such execution, delivery and performance will not violate any applicable law, rule, regulation, governing document (e.g., Certificate of Incorporation or Bylaws), contract or other material agreement binding upon the Company. If Appendix A and/or Appendix B are applicable, the Company makes the acknowledgments, representations and warranties as are set forth therein. The Company represents that the assets of the Account do not constitute assets of (a) an employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), whether or not subject to Title I of ERISA; (b) a plan described in Section 4975(e)(l) of the Internal Revenue Code; or, (c) an entity whose underlying assets are assets of a plan described in (a) or (b) by reason of such plan’s investment in the entity.
Representations and Agreements of the Company. The Company makes the following representations and agreements as the basis for its undertakings herein contained:
(a) The Company is a corporation duly organized under the laws of the State of Delaware, is qualified as a foreign corporation and in good standing in the State of California, has the power and authority to own its properties and assets and to carry on its business as now conducted and as contemplated to be conducted hereunder and has the power to execute and deliver and has duly authorized, by proper action, the execution and delivery of this Agreement and all other documents contemplated hereby to be executed by the Company.
(b) Neither the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof, conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which the Company is now a party or by which the Company is bound, or constitute a default (with due notice or the passage of time or both) under any of the foregoing, or results in the creation or imposition of any prohibited lien, charge or encumbrance whatsoever upon any of the property or assets of the Company under the terms of any instrument or agreement to which the Company is now a party or by which it is bound.
(c) The Project is located wholly within the geographic boundaries of the City of La Mirada, California.
(d) The Company has title to the Project sufficient to carry out the purposes of this Agreement and the acquisition and construction of the portions of the Project to be financed with the proceeds of Bonds has been fully completed in accordance with the plans and specifications therefor.
(e) There is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency now pending, or, to the best knowledge of the Company threatened against or affecting the Company or any of its properties or rights, which, if adversely determined, would materially impair its right to carry on business substantially as now conducted or as now contemplated to be conducted, or would materially adversely affect its financial condition. After consummation of the financing transaction, the Company will not be in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to ...
