Representations and Warranties of Both Parties. As of the Effective Date, each Party hereby represents and warrants to the other Party that: 6.1.1 It is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder; 6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it; 6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement; 6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending; 6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it; 6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement; 6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement; 6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Party hereby represents and warrants to the other Party that:
6.1.1 It is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder;
6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered Product delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.
Appears in 3 contracts
Samples: Solar Photovoltaic Alternative Energy Credit Purchase and Sale Agreement, Solar Photovoltaic Alternative Energy Credit Purchase and Sale Agreement, Solar Photovoltaic Alternative Energy Credit Purchase and Sale Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It (a) Such Party is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, formation and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
(b) Such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 (c) 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;
(d) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do such Party does not violate any of the terms or conditions in its governing documents, conflict with any agreement or any provision thereof, or any instrument or understanding, oral or written, to which it is a party or by which it or any of its property is bound, nor violate any applicable Law of any court, governmental body or provisions of law applicable to itadministrative or other agency having jurisdiction over such Party;
6.1.3 Except as set forth in and as required by this Agreement(e) No government authorization, no consent, approval, order license, exemption of or authorization offiling or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any applicable Laws currently in effect, is or will be necessary for, or registration, declaration or filing in connection with, the transaction contemplated by this Agreement or any Governmental Authority is required by such Party other agreement or instrument executed in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itherewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and such other agreements except as may be required to whether this Agreement conduct Clinical Trials or to seek or obtain Regulatory Approvals; and
(f) To its knowledge, it has not (i) employed or used and has not used a contractor or consultant that has employed or used, any individual or entity, including a clinical investigator, institution or institutional review board, debarred or disqualified by the FDA (or subject to a similar sanction by any Regulatory Authority outside the United States), or, (ii) employed any individual who or entity that is appropriate the subject of an FDA debarment or proper for it based upon its own judgmentdisqualification investigation or proceeding (or similar proceeding by any Regulatory Authority outside the United States), is not relying upon in the advice conduct of any pre-clinical activities or recommendations clinical studies of 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 AgreementCompounds.
Appears in 3 contracts
Samples: Collaboration and License Agreement (Epizyme, Inc.), Collaboration and License Agreement (Epizyme, Inc.), Collaboration and License Agreement (Epizyme, Inc.)
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants as of the Effective Date (and covenants as applicable) to the other Party that:
6.1.1 It 9.1.1. it is a corporation duly organized or formedorganized, validly existing existing, and in good standing under the laws of the its jurisdiction of incorporation;
9.1.2. It has the power and authority and the legal right to enter into this Agreement and perform its organization or formationobligations hereunder, and is qualified that it has taken all necessary action on its part required to conduct its business in all jurisdictions necessary to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 9.1.3. this Agreement are within its powers, have has been duly authorized by executed and delivered on behalf of such Party and constitutes a legal, valid and binding obligation of such Party and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered a proceeding at law or equity;
9.1.4. other than compliance with the HSR Act for the exercised Options granted hereunder, all necessary action consents, approvals and do not violate any authorizations of the terms or conditions in its governing documents, any agreement all Regulatory Authorities and other parties required to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required be obtained by such Party in connection with the executionexecution and delivery of this Agreement and the performance of its obligations hereunder have been obtained;
9.1.5. the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of Applicable Law or any provision of the certificate of incorporation, delivery bylaws or any similar instrument of such Party, as applicable, and (b) do not conflict with, violate, or breach or constitute a default or require any consent not already obtained under, any contractual obligation or court or administrative order by which such Party is bound;
9.1.6. all employees, consultants, or (sub)contractors (except academic collaborators or Third Parties under material transfer agreements) of such Party or Affiliates performing development activities hereunder on behalf of such Party will be obligated to assign all right, title and interest in and to any inventions developed by them, whether or not patentable, to such Party or Affiliate, respectively, as the sole owner thereof;
(i) 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 of the Products has been debarred under Subsection (a) or (b) of Section 306 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 335a);
(ii) no Person who is known by such Party to have been debarred under Subsection (a) or (b) of Section 306 of said 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 of the FDA clinical investigator enforcement lists (including, but not limited to, the (1) Disqualified/Totally Restricted List, (2) Restricted List and (3) Adequate Assurances List) will participate in the performance of any activities hereunder;
9.1.8. during the term of this Agreement, neither Party nor any of its Affiliates shall disclose any Confidential Information of the other Party relating to any Product to any Third Party if such disclosure would fundamentally frustrate the purpose of this Agreement;
6.1.4 This 9.1.9. Akcea has taken reasonable precautions, and during the term of this Agreement constitutes its legaleach Party will take reasonable precautions, valid and binding obligationto preserve the confidentiality of the Licensed Know-How, enforceable against it in accordance with its terms, including requiring each Person having access to the Licensed Know-How to be subject to bankruptcyconfidentiality, insolvency, reorganization and other laws affecting creditors’ rights generallynon-use, and with regard to equitable remediesnon-disclosure obligations protecting the Licensed Know-How as the confidential, to the discretion proprietary materials and information of the court before which proceedings to obtain same may be pendingAkcea;
6.1.5 No Event of Default has occurred and 9.1.10. there are no bankruptcyclaims pending or, insolvencyto each Party’s Knowledge, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledgeParty or any of its Affiliates, there are no actions, proceedings, judgments, rulings nor is such Party or orders, issued by any of its Affiliates a party to any judgment or pending before any Governmental Authoritysettlement, that would materially be reasonably expected to adversely affect its or restrict the ability of such Party to consummate any of the transactions contemplated under this Agreement or to perform any of its obligations under this Agreement, or which would affect any of the Licensed Technology, including the Licensed Patents, or Akcea’s Control thereof, or any Product;
6.1.7 It is9.1.11. all non-clinical and clinical studies and trials conducted by a Party on AKCEA-APO(a)-LRx and AKCEA-APOCIII-LRx, have been and will continue to be for the Termconducted in accordance with Applicable Law and, a Forward Contract Merchant both generally as applicable, GLP and with respect to the RECs Delivered and purchased under this AgreementGCP;
6.1.8 It 9.1.12. except for any activities Akcea is acting for its own accountobligated to conduct under the Prior Agreements as in effect on the Effective Date, has made its own independent decision to enter into each Party does not and during the term of this Agreement will not conduct any activities which would violate ARTICLE 4; and
9.1.13. Each Party and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon Affiliates have conducted and will conduct their business in compliance with the advice or recommendations Foreign Corrupt Practices Act of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts1977, the terms, conditions UK Bribery Act of 2010 and risks of this Agreementany other applicable anti-corruption Laws.
Appears in 3 contracts
Samples: Strategic Collaboration, Option and License Agreement (Akcea Therapeutics, Inc.), Strategic Collaboration, Option and License Agreement (Akcea Therapeutics, Inc.), Strategic Collaboration, Option and License Agreement (Akcea Therapeutics, Inc.)
Representations and Warranties of Both Parties. As of the Effective Date, each Party hereby represents and warrants to the other Party that:
6.1.1 It is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder;
6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.the
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It 8.1.1. such Party is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization or formation, and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
8.1.2. such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 8.1.3. this Agreement are within its powers, have has been duly authorized by all necessary action executed and do not violate any delivered on behalf of the terms or conditions in its governing documentssuch Party, any agreement to which it is and constitutes a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its termsthe terms hereof;
8.1.4. the execution, subject to bankruptcydelivery and performance of this Agreement by such Party will not constitute a default under or conflict with any agreement, insolvencyinstrument or understanding, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remediesoral or written, to the discretion which it is a party or by which it is bound, or violate any law or regulation of the court before which proceedings to obtain same may be pendingany court, governmental body or administrative or other agency having jurisdiction over such Party;
6.1.5 No Event 8.1.5. no government authorization, consent, approval, license, exemption of Default has occurred and there are no bankruptcyor filing or registration with any court or governmental department, insolvencycommission, reorganizationboard, receivership bureau, agency or other arrangement proceedings pending instrumentality, domestic or being foreign, under any applicable laws, rules or regulations currently in effect, is or will be necessary for, or in connection with, the transaction contemplated by itthis Agreement or any other agreement or instrument executed in connection herewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;Agreement and such other agreements; and
6.1.7 It is8.1.6. it has not employed (and, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for best of its own accountknowledge, has not used a contractor or consultant that has employed) and in the future will not employ (or, to the best of its knowledge, use any contractor or consultant that employs, provided that such Party may reasonably rely on a representation made its own independent decision by such contractor or consultant) any Person debarred by the FDA (or subject to enter into this Agreement and as to whether this Agreement a similar sanction of EMA or foreign equivalent), or any Person which is appropriate the subject of an FDA debarment investigation or proper for it based upon its own judgmentproceeding (or similar proceeding of EMA or foreign equivalent), is not relying upon in the advice or recommendations conduct of the other Party in so doing, Pre-Clinical Studies or Clinical Studies of the Product and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreementits activities under each Collaboration Program.
Appears in 2 contracts
Samples: Strategic Neurology Drug Discovery and Development Collaboration, Option and License Agreement (Isis Pharmaceuticals Inc), Neurology Drug Discovery and Development Collaboration, Option and License Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As of the Effective Date and the Approval Date, each Party hereby represents and warrants to the other Party that:
6.1.1 : It is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation; Except as provided in Section 2.02 and Article Five, and is qualified it has all regulatory authorizations necessary for it to conduct its business in all jurisdictions necessary to legally perform its obligations hereunder;
6.1.2 under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02) and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it or any of its property is bound, or provisions of law Applicable Laws applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 ; This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; It is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which could result in it becoming Bankrupt; There is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before threatened against it any Governmental Authority, legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and ; No Event of Default with respect to the RECs Delivered it has occurred and purchased is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement;
6.1.8 ; It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of all Product, as applicable, under this Agreement. Representations and Warranties of Seller. Seller represents and warrants to SCE that: As of the Approval Date, Seller has Site Control. As of the Effective Date and the Approval Date, to the best of Seller’s knowledge, each specification and description of each Storage Unit and the Project and the Product in Article One (and related Appendices) is true and correct. As of the Initial Delivery Date, the Project is a New Resource.
Appears in 2 contracts
Samples: Resource Adequacy Purchase Agreement, Resource Adequacy Purchase Agreement
Representations and Warranties of Both Parties. As of On the Effective Execution Date, each Party hereby represents and warrants warranties to the other Party that:
6.1.1 It : it is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, formation and is qualified to conduct its transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; it has all Governmental Approvals necessary for it to legally perform its obligations hereunder;
6.1.2 The under this Agreement; it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any contracts to which it is a party or any Law, rule, regulation, order or the like applicable to it; execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which it or any of its property respective properties is bound, bound or provisions of law applicable to it;
6.1.3 Except as set forth affected; this Agreement and each other document executed and delivered in and as required by accordance with this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; it is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which would result in it being or becoming Bankrupt, other than, in the case of CPE, the Bankruptcy Cases; there is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings threatened against it or orders, issued by or pending before any Governmental Authority, of its Affiliates any legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is; no Early Termination Event has occurred and is continuing, and will continue to be for the Term, no such event or circumstance would occur as a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased result of its entering into or performing its obligations under this Agreement;
6.1.8 It ; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to provide Showing Quantity on the terms and conditions of this Agreement; and it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party CPE 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. Representations and Warranties of Provider . Provider represents and warrants to CPE throughout the Shown Term that: all of the Capacity Attributes comprising the Showing Quantity shall be from the Project exclusively; no portion of the Showing Quantity for any day of any Showing Year and any Showing Month of the Shown Term has been committed by Provider to any third party in order to satisfy any Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets; the Project is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO; each Project’s Scheduling Coordinator, owner and operator is obligated to comply with applicable Law, including the CAISO Tariff, relating to any of the Capacity Attributes comprising the Showing Quantity and the Project, including the operation of the Project; the aggregation of all amounts of Capacity Attributes that Provider has provided for the Project under this Agreement for each day included in the Shown Term does not exceed the amount of the Project’s Net Qualifying Capacity (NQC) for that Project; the Project is listed on the CAISO NQC List and is located in the Local Capacity Area listed in Appendix B, as identified in the CAISO Final Local Capacity Technical Study for the Shown Term; [the Project and its owner and operator have all Governmental Approvals necessary for the Project to operate, generate and deliver Showing Quantity and for Project Owner and operator to legally perform its obligations under the Provider Supply Agreement; there is not pending or, to its knowledge, threatened against it, the Project Owner or operator or any of their respective Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under the Provider Supply Agreement; Provider Supply Agreement is in full force and effect; neither Provider nor the Project Owner is in default under the Provider Supply Agreement; and]6 as of the date of the relevant Compliance Showing, Provider represents and warrants to CPE that Provider owns or has the exclusive right to all of the Capacity Attributes comprising the Showing Quantity from the Project. INDEMNIFICATION and INSURANCE Indemnity by Provider . Provider shall release, defend, indemnify and hold harmless CPE, against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with Provider’s provision of the Showing Quantity or performance, or failure to perform, any of the Showing Commitment Actions. No Indemnity by CPE . CPE does not indemnify Provider. Notice of Claim .
Appears in 2 contracts
Samples: Cpe Shown Resource Adequacy Agreement, Cpe Shown Resource Adequacy Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party thatthat the following statements are true and correct as of the Effective Date:
6.1.1 It (a) there are no pending or, to such Party’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against such Party that challenge the enforceability of this Agreement or the ability of such Party to consummate the transactions contemplated hereby.
(b) (i) Purchaser is a limited liability company, duly organized or formed, validly existing and in good standing under the laws of the jurisdiction State of its organization or formationDelaware and has all requisite power and authority to own, lease, and is qualified to conduct operate its business as currently conducted in the State of California, with full legal right, power and authority to enter into and to perform its obligations hereunder and (ii) Seller is a corporation, duly formed, validly existing and in good standing under the laws of the State of California and has all jurisdictions necessary requisite power and authority to own, lease, and operate its business as currently conducted in the State of California, with full legal right, power and authority to enter into and to perform its obligations hereunder;
6.1.2 The (c) it has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes the legal, valid and binding agreement of such Party, enforceable against such Party in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) no approval, authorization, order, consent, declaration, registration or filing with any Governmental Authority is required for the valid execution and delivery of this Agreement by such Party, except such as have been duly obtained or made. Such Party has all the rights required to enter into this Agreement and perform its obligations hereunder without the consent of any third party that has not been obtained and is in effect as of the date hereof; and
(e) neither the execution, delivery and performance of this Agreement are within its powers, have been duly authorized nor the consummation by all necessary action and do not violate any such Party of the terms transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the organizational documents of such Party, or (ii) conflict with, result in any violation or breach of, constitute a default under, require any notice or consent under, result in the creation of any lien on such Party’s assets, or create any right of termination, under the conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable any note, bond, mortgage, indenture, material agreement or other instrument or obligation to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by which such Party in connection with the execution, delivery or performance of this Agreementis a party;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.
Appears in 2 contracts
Samples: Landfill Gas Purchase and Sale Agreement (OPAL Fuels Inc.), Landfill Gas Purchase and Sale Agreement (OPAL Fuels Inc.)
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It (a) Such Party is duly organized or formed, and validly existing and in good standing under the laws of the jurisdiction of its organization or formation, incorporation and is qualified has full corporate power and authority to conduct its business in enter into this Agreement and to carry out the provisions hereof;
(b) Such Party has taken all jurisdictions corporate action necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement and has full power and authority to enter into this Agreement and perform its obligations hereunder;
6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of under this Agreement;
6.1.4 (c) This Agreement has been duly executed by such Party and assuming due authorization, execution and delivery by the other Party, constitutes its legal, a valid and legally binding obligationobligation of such Party, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no limited by: (i) applicable bankruptcy, insolvency, reorganization, receivership or moratorium, and other arrangement proceedings pending or being contemplated by itlaws generally applicable to creditors' rights; and (ii) judicial discretion in the availability of equitable relief;
(d) With the exception of compliance with the applicable provisions of HSR and the approval of applicable Regulatory Authorities, such Party has obtained, or is not required to obtain, the consent, approval, order, or authorization of any Third Party, or has completed, or is not required to complete any registration, qualification, designation, declaration or filing with, any Regulatory Authority, in connection with the execution and delivery of this Agreement and the performance by such Party of its knowledge threatened against it;obligations under this Agreement, including any grant of rights to the other Parties pursuant to this Agreement; and
6.1.6 To (e) The execution and delivery of this Agreement, and the performance by such Party of its obligations under this Agreement, including the grant of rights to the other Party pursuant to this Agreement, does not and will not: (i) conflict with, nor result in any violation of or default under any such instrument, judgment, order, writ, decree, contract or provision to which such Party is otherwise bound; (ii) except as disclosed by SkyePharma on Schedule 8.1(e), give rise to any lien, charge or encumbrance upon any assets of such Party or the suspension, revocation, impairment, forfeiture or non-renewal of any material permit, license, authorization, or approval that applies to such Party’s knowledge, there are no actionsits business or operations or any of its assets or properties, proceedings, judgments, rulings except any or orders, issued by or pending before any Governmental Authority, that would materially adversely affect all of which could not reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for Agreement or on the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations rights of 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 under this Agreement; or (iii) conflict with any rights granted by such Party to any Third Party or breach any obligation that such Party has to any Third Party.
Appears in 1 contract
Representations and Warranties of Both Parties. As Each Party represents and warrants as of the Effective Date, each Party hereby represents and warrants to the other Party Date that:
6.1.1 (a) It is duly organized or formed, validly existing has the corporate power and in good standing under the laws of the jurisdiction of its organization or formation, authority to execute and is qualified to conduct its business in all jurisdictions necessary deliver this Agreement and to perform its obligations hereunder;
6.1.2 The , and the execution, delivery and performance of this Agreement are within its powers, have has been duly and validly authorized and approved by all necessary proper corporate action on the part of such Party. Assuming due authorization, execution and do delivery on the part of the other Party, this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against such Party, in accordance with its terms.
(b) The execution and delivery of this Agreement by it and the performance by it contemplated hereunder will not violate any Applicable Laws.
(c) To its knowledge, it is in compliance in all material respects with all material Applicable Laws applicable to the subject matter of this Agreement.
(d) It is not a party to any agreement or arrangement with any Third Party or under any obligation or restriction (including any outstanding order, judgment or decree of any court or administrative agency) which in any way limits or conflicts with its ability to fulfill any of its obligations under this Agreement.
(e) As of the terms Effective Date and during the Term, neither it nor its Affiliates nor any of their respective directors, officers, employees, or conditions consultants, and, to its knowledge based upon reasonable inquiry, any Third Party (and its directors, officers, employees and consultants), in each case whose responsibilities involve the Promotion and Detailing of the Product hereunder:
(i) are debarred under Section 306(a) or 306(b) of the Act;
(ii) have been charged with, or convicted of, any felony or misdemeanor under Applicable Laws related to any of the following: (A) the development or approval of any drug product or the regulation of any drug product under the Act; (B) a conspiracy to commit, aid or abet the development or approval of any drug product or regulation CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934. of any drug product; (C) health care program-related crimes (involving Medicare or any State health care program); (D) patient abuse, controlled substances, bribery, payment of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records; (E) interference with, obstruction of an investigation into, or prosecution of, any criminal offense; or (F) a conspiracy to commit, aid or abet any of these listed felonies or misdemeanors; or
(iii) is excluded, suspended or debarred from participation, or otherwise ineligible to participate, in any federal or state health care programs (including convicted of a criminal offense that falls within the scope of 42 U.S.C. §1320a-7 but not yet excluded, debarred, suspended, or otherwise declared ineligible), or excluded, suspended or debarred from participation, or otherwise ineligible to participate, in any Federal procurement or nonprocurement programs.
(f) Each Party will notify the other Party immediately, but in no event later than five (5) days, after knowledge of any exclusion, debarment, suspension or other ineligibility set forth in Section 11.1(e)(iii) occurring during the Term, or if such Party concludes based on its good faith business judgment that a pending action or investigation is likely to lead to the exclusion, debarment, suspension or other ineligibility of such Party.
(g) Each Party at its own expense hereby covenants that it shall, as part of the pre-hiring or pre-contracting process, screen against Exclusion Lists (as defined below) all of its directors, officers, employees, consultants, and any Third Party (and those of such Third Party’s directors, officers, employees and consultants that are known to such Party), in each case that such Party hires or engages whose responsibilities, to such Party’s knowledge based on reasonable inquiry, involve the Promotion or Detailing of the Product as authorized by this Agreement, and will conduct such screens on an annual basis thereafter. Upon request by a Party, the other Party shall certify the results of such screening to the requesting Party. For purposes of this Agreement, “Exclusion Lists” include at a minimum: (i) the HHS/OIG List of Excluded Individuals/Entities (available through the Internet at xxxx://xxx.xxx.xxx.xxx) or any successor list; and (ii) the General Services Administration’s List of Parties Excluded from Federal Programs (available through the Internet at xxxx://xxx.xxxx.xxx) or any successor list.
(h) It has provided or made available, when requested by the other Party to conduct its due diligence review, any and all documents and communications in its governing documentspossession from and to the FDA or any other Governmental Authority, or prepared by the FDA or any agreement other Governmental Authority, that may bear on compliance with the requirements of the FDA or any other Governmental Authority, including any notice of inspection, inspection report, warning letter, deficiency letter, or similar communication. In connection with the foregoing, each Party represents and warrants to which the other that it is not subject, as of the Effective Date, to any corporate integrity agreement(s) and each Party further covenants that it shall promptly notify the other Party in the event that it becomes subject to a party corporate integrity agreement at any time during the Term.
(i) Neither it nor any of its Affiliates has received any oral or by which written communication (including any warning letter, untitled letter, or similar notices) from the FDA and there is no action pending or, to its knowledge, threatened (including any prosecution, injunction, seizure, civil fine, suspension or recall), in each case alleging that it or any of its property Affiliates is boundnot currently materially in compliance with any and all Applicable Laws implemented by the FDA. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(j) To its knowledge, it nor any of its Affiliates or provisions any of law applicable their respective officers, employees or agents has made an untrue statement of a material fact to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order the FDA or authorization of, or registration, declaration or filing with, any other Governmental Authority is or failed to disclose a material fact required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, be disclosed to the discretion FDA or other Governmental Authority; and
(k) There is no material matter known to it as of the court before Effective Date which proceedings has not been disclosed by it to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable concerning the safety or efficacy of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this AgreementProduct.
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It 8.1.1. such Party is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization or formation, and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
8.1.2. such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 8.1.3. this Agreement are within its powers, have has been duly authorized by all necessary action executed and do not violate any delivered on behalf of the terms or conditions in its governing documentssuch Party, any agreement to which it is and constitutes a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its termsthe terms hereof;
8.1.4. the execution, subject to bankruptcydelivery and performance of this Agreement by such Party will not constitute a default under or conflict with any agreement, insolvencyinstrument or understanding, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remediesoral or written, to the discretion which it is a party or by which it is bound, or violate any law or regulation of the court before which proceedings to obtain same may be pendingany court, governmental body or administrative or other agency having jurisdiction over such Party;
6.1.5 No Event 8.1.5. no government authorization, consent, approval, license, exemption of Default has occurred and there are no bankruptcyor filing or registration with any court or governmental department, insolvencycommission, reorganizationboard, receivership bureau, agency or other arrangement proceedings pending instrumentality, domestic or being foreign, under any applicable laws, rules or regulations currently in effect, is or will be necessary for, or in connection with, the transaction contemplated by itthis Agreement or any other agreement or instrument executed in connection herewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;Agreement and such other agreements; and
6.1.7 It is8.1.6. it has not employed (and, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for best of its own accountknowledge, has not used a contractor or consultant that has employed) and in the future will not employ (or, to the best of its knowledge, use any contractor or consultant that employs, provided that such Party may reasonably rely on a representation made its own independent decision by such contractor or consultant) any Person debarred by the FDA (or subject to enter into this Agreement and as to whether this Agreement a similar sanction of EMA or foreign equivalent), or any Person which is appropriate the subject of an FDA debarment investigation or proper for it based upon its own judgmentproceeding (or similar proceeding of EMA or foreign equivalent), is not relying upon in the advice or recommendations conduct of the other Party in so doing, Pre-Clinical Studies or Clinical Studies of the Product and is capable of assessing its activities under the merits of and understanding, and understands and accepts, the terms, conditions and risks of this AgreementISIS-SMNRx Development Plan.
Appears in 1 contract
Samples: Development, Option and License Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As of the Effective Date, each Party hereby represents and warrants to the other Party that:
6.1.1 It (a) it is duly organized or formed, validly existing existing, and in good standing under the laws Laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder;
6.1.2 The (b) the execution, delivery delivery, and performance of this Agreement are within its powers, have been duly authorized by all necessary action action, and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except (c) the execution, delivery and performance of this Agreement will not result in the creation or imposition of any Lien upon its properties (except as expressly contemplated in favor of Buyer pursuant to this Agreement), the creation or imposition of which could reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement;
(d) except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration declaration, or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This (e) this Agreement constitutes its legal, valid valid, and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization reorganization, and other laws Laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No (f) no Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To (g) to such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;; and
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It (h) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions conditions, and risks of this Agreement.
(i) it has all Permits necessary for it to legally perform its obligations under this Agreement, or with respect to Seller, such Permits will be obtained by Seller in the ordinary course of its development and construction of the Facility; and
(j) it is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the Product delivered and purchased under this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants as of the Execution Date (and covenants as applicable) to the other Party that:
6.1.1 It 9.1.1. it is a corporation duly organized or formedorganized, validly existing existing, and in good standing under the laws of the its jurisdiction of incorporation;
9.1.2. it has the power and authority and the legal right to enter into this Agreement and perform its organization or formationobligations hereunder, and is qualified that it has taken all necessary action on its part required to conduct its business in all jurisdictions necessary to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 9.1.3. this Agreement are within its powers, have has been duly authorized by executed and delivered on behalf of such Party and constitutes a legal, valid and binding obligation of such Party and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered a Proceeding at law or equity;
9.1.4. all necessary action consents, approvals and do not violate any authorizations of the terms or conditions in its governing documents, any agreement all Regulatory Authorities and other parties required to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required be obtained by such Party in connection with the execution, execution and delivery or of this Agreement and the performance of this Agreementits obligations hereunder have been obtained;
6.1.4 This 9.1.5. the execution and delivery of this Agreement constitutes its legaland the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of Applicable Law or any provision of the certificate of incorporation, valid and binding obligationbylaws or any similar instrument of such Party, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generallyas applicable, and with regard (b) do not conflict with, violate, or breach or constitute a default or require any consent not already obtained under, any contractual obligation or court or administrative order by which such Party is bound;
9.1.6. all employees, consultants, or (sub)contractors (except academic collaborators or Third Parties under material transfer agreements) of such Party or Affiliates performing development activities hereunder on behalf of such Party will be obligated to equitable remediesassign all right, title and interest in and to any inventions developed by them, whether or not patentable, to such Party or Affiliate, respectively, as the sole owner thereof;
(a) neither such Party nor, to the discretion actual knowledge of such Party, any employee, agent or subcontractor of such Party involved or to be involved in the Development or Research of the court before Licensed Products has been debarred under Subsection (a) or (b) of Section 306 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 335a) or under comparable Applicable Law; (b) no Person who is known by such Party to have been debarred under Subsection (a) or (b) of Section 306 of said Act or under comparable Applicable Law will be employed by such Party in the performance of any activities hereunder; (c) to the actual knowledge of such Party, no Person on any of the FDA clinical investigator enforcement lists (including, but not limited to, the (1) Disqualified/Totally Restricted List, (2) Restricted List and (3) Adequate Assurances List) will participate in the performance of any activities hereunder and (d) if either Party becomes aware of the debarment or threatened debarment of any person or entity providing services to such Party, including the Party itself and its Affiliates, which proceedings directly or indirectly relate to obtain same may activities under this Agreement, the other Party will be pendingimmediately notified in writing;
6.1.5 No Event 9.1.8. Xxxxx has taken and each Party will take reasonable precautions to preserve the confidentiality of Default has occurred the Licensed Know-How, including requiring each Person having access to the Licensed Know-How to be subject to confidentiality, non-use, and non-disclosure obligations protecting the Licensed Know-How as the confidential, proprietary materials and information of Ionis;
9.1.9. there are no bankruptcyclaims pending or, insolvencyto each Party’s Knowledge, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledgeParty or any of its Affiliates, there are no actions, proceedings, judgments, rulings nor is such Party or orders, issued by any of its Affiliates a party to any judgment or pending before any Governmental Authoritysettlement, that would materially be reasonably expected to adversely affect its or restrict the ability of such Party to consummate any of the transactions contemplated under this Agreement or to perform any of its obligations under this Agreement, or which would affect any of the Licensed Technology, including the Licensed Patents, or Ionis’s Control thereof, or any Licensed Product;
6.1.7 It is9.1.10. all non-Clinical and Clinical studies and trials conducted by a Party for a Licensed Product will be conducted in accordance with Applicable Law including, as applicable, GLP and GCP; and
9.1.11. each Party and its Affiliates have conducted and will continue to be for conduct their business in compliance with the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations Foreign Corrupt Practices Act of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts1977, the terms, conditions UK Bribery Act of 2010 and risks of this Agreementany other applicable anti-corruption Laws.
Appears in 1 contract
Samples: Collaboration and License Agreement (Ionis Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As Each Party hereby represents, warrants, and covenants to the other Party, as of the Effective Date, each Party hereby represents and warrants to the other Party that:
6.1.1 It 10.1.1 such Party is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, incorporation and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
10.1.2 such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The 10.1.3 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; [***] THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
10.1.4 the execution, delivery and performance of this Agreement are within its powersby such Party does not conflict with any agreement, have been duly authorized by all necessary action and do not violate any of the terms instrument or conditions in its governing documentsunderstanding, any agreement oral or written, to which it is a party or by which it or any of its property is bound, nor violate any law or provisions regulation of law applicable to itany court, governmental body or administrative or other agency having jurisdiction over such Party;
6.1.3 Except as set forth in and as required by this Agreement10.1.5 no government authorization, no consent, approval, order license, exemption of or authorization offiling or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any applicable laws, rules or regulations currently in effect, is or will be necessary for, or registration, declaration or filing in connection with, the transaction contemplated by this Agreement or any Governmental Authority is required by such Party other agreement or instrument executed in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itherewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;Agreement and such other agreements except as may be required under the stock purchase agreement or to obtain HSR clearance; and
6.1.7 It is10.1.6 it has not employed (and, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for best of its own accountknowledge without further duty of inquiry, has made not used a contractor or consultant that has employed) and in the future will not employ (or, to the best of its own independent decision knowledge without further duty of inquiry, use any contractor or consultant that employs) any individual or entity debarred by the FDA (or subject to enter into this Agreement and as a similar sanction of EMEA), or, to whether this Agreement the best of its knowledge without further duty of inquiry, any individual who or entity which is appropriate the subject of an FDA debarment investigation or proper for it based upon its own judgmentproceeding (or similar proceeding of EMEA), is not relying upon in the advice or recommendations conduct of the other Party in so doing, pre-clinical activities or clinical studies of Collaboration Compounds and is capable of assessing its activities under the merits of and understanding, and understands and accepts, the terms, conditions and risks of this AgreementResearch Collaboration.
Appears in 1 contract
Samples: Research and Development Collaboration, Option and License Agreement (Anacor Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As of the Effective DateDate and/or the CP Satisfaction Date (as applicable), each Party hereby represents and warrants to the other Party that:
6.1.1 : It is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation; As of the CP Satisfaction Date, and is qualified it has all regulatory authorizations necessary for it to conduct its business in all jurisdictions necessary to legally perform its obligations hereunder;
6.1.2 under this Agreement, other than with respect to Seller, any of those Required Permits that satisfy all of the following: it is not required prior to the start of construction of the Project, it is not subject to the discretionary action of the applicable Governmental Authority, and it otherwise can be obtained in the ordinary course of business; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 Applicable Laws; This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; It is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which would result in it being or becoming Bankrupt; Except as may be set forth in its reports filed with the SEC, there is not pending or, to its knowledge, there are no actionsthreatened against it or in Seller’s case, proceedingsGuarantor, judgmentsif applicable, rulings or orders, issued by or pending before any Governmental Authority, legal proceedings that would could materially adversely affect its such party’s ability to perform its obligations under this Agreement or the Guaranty Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and as applicable; No Event of Default with respect to the RECs Delivered it has occurred and purchased is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
6.1.8 ; It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of all Product under this Agreement.
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It (a) Such Party is duly organized or formed, and validly existing and in good standing under the laws of the jurisdiction of its organization or formation, incorporation and is qualified has full corporate power and authority to conduct its business in enter into this Agreement and to carry out the provisions hereof;
(b) Such Party has taken all jurisdictions corporate action necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement and has full power and authority to enter into this Agreement and perform its obligations hereunder;
6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of under this Agreement;
6.1.4 (c) This Agreement has been duly executed by such Party and assuming due authorization, execution and delivery by the other Party, constitutes its legal, a valid and legally binding obligationobligation of such Party, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no limited by: (i) applicable bankruptcy, insolvency, reorganization, receivership or moratorium, and other arrangement proceedings pending or being contemplated by itlaws generally applicable to creditors’ rights; and (ii) judicial discretion in the availability of equitable relief;
(d) With the exception of compliance with the applicable provisions of HSR and the approval of applicable Regulatory Authorities, such Party has obtained, or is not required to obtain, the consent, approval, order, or authorization of any Third Party, or has completed, or is not required to complete any registration, qualification, designation, declaration or filing with, any Regulatory Authority, in connection with the execution and delivery of this Agreement and the performance by such Party of its knowledge threatened against it;obligations under this Agreement, including any grant of rights to the other Parties pursuant to this Agreement; and
6.1.6 To (e) The execution and delivery of this Agreement, and the performance by such Party of its obligations under this Agreement, including the grant of rights to the other Party pursuant to this Agreement, does not and will not: (i) conflict with, nor result in any violation of or default under any such instrument, judgment, order, writ, decree, contract or provision to which such Party is otherwise bound; (ii) except as disclosed by SkyePharma on Schedule 8.1(e), give rise to any lien, charge or encumbrance upon any assets of such Party or the suspension, revocation, impairment, forfeiture or non-renewal of any material permit, license, authorization, or approval that applies to such Party’s knowledge, there are no actionsits business or operations or any of its assets or properties, proceedings, judgments, rulings except any or orders, issued by or pending before any Governmental Authority, that would materially adversely affect all of which could not reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for Agreement or on the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations rights of 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 under this Agreement; or (iii) conflict with any rights granted by such Party to any Third Party or breach any obligation that such Party has to any Third Party.
Appears in 1 contract
Samples: Strategic Alliance Agreement (Endo Pharmaceuticals Holdings Inc)
Representations and Warranties of Both Parties. As 3.1 The Parties of the Effective Date, each Party hereby represents and warrants to the other Party thatCooperation Company:
6.1.1 It 3.2 Party A’s Representations and Warranties Party A hereby makes the following representations and warranties to Party B and the Cooperation Company:
(a) Party A is duly organized or formed, validly existing and in good standing a company lawfully incorporated under the laws of the jurisdiction of its organization or formation, United States and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereundervalid existence under good standing;
6.1.2 The (b) Party A has adequate legal right and power within its limit of authority to execute, deliver and perform this Agreement and all other agreements and documents under which Party A is a party;
(c) Party A has conducted all proper and necessary corporate actions (including shareholder resolutions and/or board resolutions) to authorize execution, delivery and performance of this Agreement are within its powersand all other agreements and documents under which Party A is a party; and Party A has adequately authorized a signatory to execute this Agreement and agreed to be bound by the Agreement;
(d) Other than the approval of the Agreement from the Authority of Examination and Approval, have been duly authorized Party A has obtained all legally required consent, permit and authority from a company, a third party or other parties to execute, deliver and perform this Agreement and all other agreements and documents under which Party A is a party. The Agreement, when approved by all necessary action the Authority of Examination and do Approval, shall become lawful, effective and binding on Party A and shall force Party A to perform under the terms and conditions of the Agreement;
(e) The execution and performance of the Agreement and the planned transaction shall not violate any Bylaws or breach any contracts and agreements under which Party A is a party, or violate laws or regulations, or cause violation of any material terms of such covenants and laws, or cause nonperformance of such covenants and laws; and
(f) No litigation, arbitration or other pending legal proceedings shall be raised, or have an influence, or threaten Party A’s capacity to execute or perform the Agreement.
3.3 Party B’s Representations and Warranties
(a) To the knowledge of Party B (after proper and attentive inquiry and research), Party B has complied with all laws, ordinances, regulations, rules, requirements and orders issued by or applicable to the county government with jurisdiction (“Relevant County Government”) and/or its agencies;
(b) At the execution of the terms Agreement, all documents submitted to Party A regarding the establishment, corporate change, ownership structure, assets, liabilities, debts and the rights of management of the Cooperation Company are lawful, true and comprehensive;
(c) Party B is not involved in any liability of tax, interest or conditions in fine, or shall be defined as harmful to the Cooperation Company, or has pledge or potential pledge on all or part of the company’s assets;
(d) The representations and warranties under this Article shall not misrepresent any material terms, or omit any material fact that is necessary to avoid misunderstanding of this Article or other Articles, or omit any fact known by the Parties, as not stated under this Agreement or schedule or description of the Agreement, that is substantially influential to the transaction under the Agreement, the business and operation of the company, and the property and financial status of the company;
(e) The description of the credits and liabilities of the Cooperation Company provided to Party A is true and complete and no other liability exists. Party B shall be liable for any damage to Party A caused by any liability that occurred prior to the execution of the Agreement that is not provided by writing to Party A.
(f) Party B has adequate legal right and power within its governing documentslimit of authority to execute, any agreement to deliver and perform the Agreement and all other agreements and documents under which it Party B is a party or by which it or any of its property is bound, or provisions of law applicable to itparty;
6.1.3 Except as set forth in (g) Party B has conducted all proper and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the necessary actions (including shareholder resolutions) to authorize execution, delivery or and performance of this Agreement and all other agreements and documents under which Party B is a party; Party B has adequately authorized a signatory to execute this Agreement and agreed to be bound by the Agreement;
6.1.4 This (h) Other than the approval of the Agreement constitutes its legalfrom the Authority of Examination and Approval, valid Party B has obtained all legally required consent, permit and authority from a company, a third party or other parties to execute, deliver and perform this Agreement and all other agreements and documents under which Party B is a party. The Agreement, when approved by the Authority of Examination and Approval, shall become lawful, effective and binding obligation, enforceable against it in accordance with its terms, subject on Party B and shall force Party B to bankruptcy, insolvency, reorganization perform under the terms and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion conditions of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is(i) The execution and performance of the Agreement and the planned transaction shall not violate any Bylaws, or breach any contracts and will continue agreements under which Party B is a party, or violate laws or regulations, or cause violation of any material terms of such covenants and laws, or cause nonperformance of such covenants and laws; and
(j) No litigation, arbitration or other pending legal proceedings shall be raised, or have an influence, or threaten Party B’s capacity to be for execute or perform the TermAgreement, a Forward Contract Merchant both generally and with respect or cause harmful influence to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own accountbusiness, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgmentoperation, is not relying upon the advice or recommendations assets, financial status of 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 AgreementCooperation Company.
Appears in 1 contract
Samples: Cooperative Operation Agreement (L & L Energy, Inc.)
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Execution Date and as of the Closing Date, that:
6.1.1 It 11.1.1 such Party is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, incorporation and is qualified has full corporate power and authority to conduct enter into and deliver this Agreement and to carry out the provisions hereof;
11.1.2 such Party has taken all necessary action on its business in all jurisdictions necessary part required by applicable Law and its organizational documents to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The 11.1.3 this Agreement has been duly and validly executed and delivered on behalf of such Party, and, assuming due and valid authorization, execution and delivery by the other Party, constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof, subject to bankruptcy, insolvency, moratorium or other similar Laws affecting or relating the enforcement of creditors’ rights generally, and general principals of equity;
11.1.4 the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do such Party does not violate any of the terms or conditions in its governing documents, conflict with any agreement or any provision thereof, or any instrument or understanding, oral or written, to which it is a party or by which it or any of its property is bound, nor violate any Law or provisions regulation of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is having jurisdiction over such Party;
11.1.5 except as contemplated by Section 11.4.3, all consents, approvals and authorizations from all Governmental Authorities or other Third Parties required to be obtained by such Party in connection with this Agreement have been obtained;
11.1.6 such Party is not debarred under the executionUnited States Federal Food, delivery Drug and Cosmetic Act or performance comparable applicable Laws and it does not, and will not during the Term, employ or use the services of any Person that is debarred, in connection with the Exploitation of the Products. If either Party becomes aware of the debarment or threatened debarment of any Person providing services to such Party, including the Party itself and its Affiliates or Sublicensees, which directly or indirectly relate to activities under this Agreement, the other Party will be immediately notified in writing;
6.1.4 This Agreement constitutes its legal11.1.7 none of a Party’s officers, valid directors and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generallyemployees, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such each Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect other party acting on its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own accountbehalf, has made directly or indirectly given, offered or promised to give money or anything of value to any Government Official in an effort to influence any Government Official or any other Person in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as a permit or license to do business, or accepted such a payment. Each Party further warrants that all persons acting on its own independent decision to enter into this Agreement behalf have complied with all applicable Laws in connection with conducting its business operations, including the U.S. Foreign Corrupt Practices Act, laws implementing the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and as to whether this Agreement is appropriate local Laws prohibiting bribery, kickbacks, or proper for it based upon its own judgment, is not relying upon the advice other unlawful or recommendations improper means of the other Party in so doing, obtaining business or commercial advantages; and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement.165301880
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party thatthat as of the date of this Contract and as of the Establishment Date:
6.1.1 It 7.1.1 it is an independent legal person, duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereundersuch Party;
6.1.2 The execution7.1.2 it has full legal right, delivery power, capacity and authority to execute this Contract and all of the contracts and documents contemplated herein to which each of them is a party and to observe and perform their obligations hereunder and thereunder;
7.1.3 it has taken all appropriate and necessary corporate action to authorize the execution of this Contract and all of the contracts and documents contemplated herein to which it is a party and to authorize the performance and observance of the terms and conditions hereof and thereof;
7.1.4 it has obtained all requisite consents, approvals and authorizations of relevant governmental, quasi-governmental and other regulatory authorities necessary for the valid execution and performance of this Agreement are within its powers, have been duly authorized by Contract and all necessary action and do not violate any of the terms contracts and documents contemplated herein to which it is a party;
7.1.5 neither the execution of this Contract, nor the performance of its obligations hereunder, will conflict with, or conditions result in its governing documentsa breach of, or constitute a default under, any agreement provision of its business licence, articles of association, by-laws, or any law, rule, regulation, order, judgment or decree, authorisation or approval of any government authority, or of any contract, agreement, instrument, commitment, undertakings or arrangement, to which it is a party or by which it or any of its property is bound, or provisions of law applicable to itsubject to;
6.1.3 Except as set forth in 7.1.6 it has duly authorised, executed and as required by delivered this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of Contract and this Agreement;
6.1.4 This Agreement Contract constitutes its a legal, valid and binding obligation, obligation enforceable against it in accordance with its terms;
7.1.7 there is no lawsuit, subject to bankruptcyarbitration, insolvencyor judicial, reorganization and administrative or other laws affecting creditors’ rights generallyproceedings or governmental investigation, and with regard to equitable remediespending or, to the discretion best of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcyits knowledge, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and it with respect to the RECs Delivered and purchased under subject matter of this Agreement;
6.1.8 It is acting for Contract or that would affect in any way its own account, has made its own independent decision ability to enter into or perform this Agreement Contract; and
7.1.8 it has sufficient funds and other financial assets to meet its obligation under this Contract without impairing its ability to continue in business as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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 Agreementa going concern.
Appears in 1 contract
Samples: Sino Foreign Equity Joint Venture Contract (Rockley Photonics Holdings LTD)
Representations and Warranties of Both Parties. As of the Effective Date and the Approval Date, each Party hereby represents and warrants to the other Party that:
6.1.1 : It is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation; Except as provided in Section 2.02 and Article Five, and is qualified it has all regulatory authorizations necessary for it to conduct its business in all jurisdictions necessary to legally perform its obligations hereunder;
6.1.2 under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02 and Article Five) and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it or any of its property is bound, or provisions of law Applicable Laws applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 ; This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; It is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement not proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which could result in it becoming Bankrupt; There is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before threatened against it any Governmental Authority, legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and ; No Event of Default with respect to the RECs Delivered it has occurred and purchased is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement;
6.1.8 ; It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of all Product, as applicable, under this Agreement.
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Representations and Warranties of Both Parties. As of (a) On the Effective Execution Date, each Party hereby Seller represents and warrants to the other Party Buyer that:
6.1.1 It (i) it is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, formation and is qualified to conduct its transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby;
(ii) except for receipt of the Governmental Approvals necessary to install, operate and maintain the Project, it has all Governmental Approvals necessary for it to legally perform its obligations hereunderunder this Agreement;
6.1.2 The (iii) it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any contracts to which it is a party or any Law, rule, regulation, order or the like applicable to it;
(iv) execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which it or any of its property respective properties is bound, bound or provisions of law applicable to itaffected;
6.1.3 Except as set forth (v) this Agreement and each other document executed and delivered in and as required by accordance with this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pendingany Equitable Defenses;
6.1.5 No Event of Default has occurred (vi) it is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against itit which would result in it being or becoming Bankrupt;
6.1.6 To such Party’s (vii) there is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings threatened against it or orders, issued by or pending before any Governmental Authority, of its Affiliates any legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and (viii) no Event of Default with respect to the RECs Delivered it has occurred and purchased is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
6.1.8 It (ix) it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Agreement);
(x) 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 Energy Efficiency Services as provided in this Agreement; and
(xi) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.
(b) On the Execution Date, Buyer represents and warrants to Seller that:
(i) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation
(ii) it has all regulatory authorizations necessary for it to perform its obligations under this Agreement, except for CPUC Approval;
(iii) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Laws applicable to it;
(iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(v) no Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
(vi) it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Agreement);
(vii) 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 Energy Efficiency Services as provided in this Agreement; and
(viii) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of 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.
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It 13.1.1 such Party is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, incorporation and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
13.1.2 such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The 13.1.3 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;
13.1.4 the execution, delivery and performance of this Agreement are within its powersby such Party, have been duly authorized by all necessary action and do including the grant of rights to the other Party pursuant to this Agreement, does not violate any to the best of the terms knowledge of such Party: (i) conflict with, nor result in any violation of or conditions in its governing documentsdefault under any agreement, any agreement instrument or understanding, oral or written, to which it or any Affiliate is a party or by which it or any of its property Affiliate is bound; (ii) conflict with any rights granted by such Party to any Third-Party or breach any obligation that such Party has to any Third-Party; nor (iii) violate any Applicable Law of any court, governmental body or provisions of law applicable to itadministrative or other agency having jurisdiction over such Party;
6.1.3 Except as set forth in and as required by this Agreement13.1.5 no government authorization, no consent, approval, order license, exemption of or authorization offiling or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Applicable Laws, rules or regulations currently in effect is necessary for, or registration, declaration or filing in connection with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being transaction contemplated by it, this Agreement or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;
6.1.7 It is13.1.6 all of its employees, officers, contractors, and consultants who have rendered or will continue render services relating to be for a GVAX Licensed Therapeutic either (i) have executed agreements requiring assignment to such Party of all right, title and interest in and to their inventions and discoveries they have invented or otherwise discovered or generated during the Termcourse of and as a result of their association with such Party, whether or not patentable, if any, to such Party as the sole owner thereof; or (ii) if any of such Party’s employees, officers, contractors, and consultants shall not have executed such an agreement: (a) are subject to legal requirements to assign all right, title and interest in and to all inventions they have invented or otherwise discovered or generated during the course of and as a Forward Contract Merchant both generally result of their association with such Party to such Party; or (ii) assignment by such employee, officer, contractor, and with respect consultant of such inventions to such Party occurs by operation of law;
13.1.7 all of its employees, officers, contractors, and consultants who have rendered or will render services relating to a GVAX Licensed Therapeutic either (i) have executed agreements obligating each such employee, officer, contractor, and consultant to maintain as confidential the Confidential Information of such Party; or (ii) if any of such Party’s employees, officers, contractors, and consultants shall not have executed such an agreement, such employees, officers, contractors, and consultants are subject by operation of law or applicable professional requirements to maintain as confidential the Confidential Information of such Party;
13.1.8 neither such Party, nor any of its employees, officers, or to the RECs Delivered and purchased best of its knowledge, any subcontractors, or consultants who have rendered or will render services relating to a GVAX Licensed Therapeutic: (a) has ever been debarred or is subject or debarment or convicted of a crime for which an entity or person could be debarred by the FDA under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision 21 U.S.C. §335a (or subject to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations a similar sanction of the other EMA) or (b) to the knowledge of a Party has ever been under indictment for a crime for which a person or entity could be so debarred; and
13.1.9 such Party shall conduct its activities hereunder in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreementaccordance with Applicable Law.
Appears in 1 contract
Samples: Gvax Prostate License Agreement (Aduro Biotech, Inc.)
Representations and Warranties of Both Parties. As Each Party represents and warrants as of the Effective Date, each Party hereby represents and warrants to the other Party Date that:
6.1.1 (a) It is duly organized or formed, validly existing has the corporate power and in good standing under the laws of the jurisdiction of its organization or formation, authority to execute and is qualified to conduct its business in all jurisdictions necessary deliver this Agreement and to perform its obligations hereunder;
6.1.2 The , and the execution, delivery and performance of this Agreement are within its powers, have has been duly and validly authorized and approved by all necessary proper corporate action on the part of such Party. Assuming due authorization, execution and do not violate any delivery on the part of the terms or conditions in its governing documentsother Party, any agreement to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its a legal, valid and binding obligationobligation of such Party, enforceable against it such Party, in accordance with its terms.
(b) The execution and delivery of this Agreement by it and the performance by it contemplated hereunder will not violate any Applicable Laws.
(c) To its knowledge, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and it is in compliance in all material respects with regard to equitable remedies, all material Applicable Laws applicable to the discretion subject matter of the this Agreement.
(d) It is not a party to any agreement or arrangement with any Third Party or under any obligation or restriction (including any outstanding order, judgment or decree of any court before or administrative agency) which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership in any way limits or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect conflicts with its ability to perform fulfill any of its obligations under this Agreement.
(e) As of the Effective Date and during the Term, neither it nor its Affiliates nor any of their respective directors, officers, employees, or consultants, and, to its knowledge based upon reasonable inquiry, any Third Party (and its directors, officers, employees and consultants), in each case whose responsibilities involve the Promotion and Detailing of the Product hereunder:
(i) are debarred under Section 306(a) or 306(b) of the Act;
6.1.7 It is(ii) have been charged with, or convicted of, any felony or misdemeanor under Applicable Laws related to any of the following: (A) the development or approval of any drug product or the regulation of any drug product under the Act; (B) a conspiracy to commit, aid or abet the development or approval of any drug product or regulation CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934. of any drug product; (C) health care program-related crimes (involving Medicare or any State health care program); (D) patient abuse, controlled substances, bribery, payment of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records; (E) interference with, obstruction of an investigation into, or prosecution of, any criminal offense; or (F) a conspiracy to commit, aid or abet any of these listed felonies or misdemeanors; or
(iii) is excluded, suspended or debarred from participation, or otherwise ineligible to participate, in any federal or state health care programs (including convicted of a criminal offense that falls within the scope of 42 U.S.C. §1320a-7 but not yet excluded, debarred, suspended, or otherwise declared ineligible), or excluded, suspended or debarred from participation, or otherwise ineligible to participate, in any Federal procurement or nonprocurement programs.
(f) Each Party will notify the other Party immediately, but in no event later than five (5) days, after knowledge of any exclusion, debarment, suspension or other ineligibility set forth in Section 11.1(e)(iii) occurring during the Term, or if such Party concludes based on its good faith business judgment that a pending action or investigation is likely to lead to the exclusion, debarment, suspension or other ineligibility of such Party.
(g) Each Party at its own expense hereby covenants that it shall, as part of the pre-hiring or pre-contracting process, screen against Exclusion Lists (as defined below) all of its directors, officers, employees, consultants, and any Third Party (and those of such Third Party’s directors, officers, employees and consultants that are known to such Party), in each case that such Party hires or engages whose responsibilities, to such Party’s knowledge based on reasonable inquiry, involve the Promotion or Detailing of the Product as authorized by this Agreement, and will continue to be for the Termconduct such screens on an annual basis thereafter. Upon request by a Party, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable shall certify the results of assessing such screening to the merits of and understanding, and understands and accepts, the terms, conditions and risks requesting Party. For purposes of this Agreement, “Exclusion Lists” include at a minimum: (i) the HHS/OIG List of Excluded Individuals/Entities (available through the Internet at xxxx://xxx.xxx.xxx.xxx) or any successor list; and (ii) the General Services Administration’s List of Parties Excluded from Federal Programs (available through the Internet at xxxx://xxx.xxxx.xxx) or any successor list.
Appears in 1 contract
Samples: Co Promotion Agreement
Representations and Warranties of Both Parties. As of On the Effective Execution Date, each Party hereby represents and warrants warranties to the other Party that:
6.1.1 It : it is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, formation and is qualified to conduct its transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; it has all Governmental Approvals necessary for it to legally perform its obligations hereunder;
6.1.2 The under this Agreement; it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any contracts to which it is a party or any Law, rule, regulation, order or the like applicable to it; execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which it or any of its property respective properties is bound, bound or provisions of law applicable to it;
6.1.3 Except as set forth affected; this Agreement and each other document executed and delivered in and as required by accordance with this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; it is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which would result in it being or becoming Bankrupt, other than, in the case of CPE, the Bankruptcy Cases; there is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings threatened against it or orders, issued by or pending before any Governmental Authority, of its Affiliates any legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is; no Early Termination Event has occurred and is continuing, and will continue to be for the Term, no such event or circumstance would occur as a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased result of its entering into or performing its obligations under this Agreement;
6.1.8 It ; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to provide Showing Quantity on the terms and conditions of this Agreement; and it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party CPE 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. Representations and Warranties of Provider . Provider represents and warrants to CPE throughout the Shown Term that: all of the Capacity Attributes comprising the Showing Quantity shall be from the Project exclusively; no portion of the Showing Quantity for any day of any Showing Year and any Showing Month of the Shown Term has been committed by Provider to any third party in order to satisfy any Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets; the Project is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO; each Project’s Scheduling Coordinator, owner and operator is obligated to comply with applicable Law, including the CAISO Tariff, relating to any of the Capacity Attributes comprising the Showing Quantity and the Project, including the operation of the Project; the aggregation of all amounts of Capacity Attributes that Provider has provided for the Project under this Agreement for each day included in the Shown Term does not exceed the amount of the Project’s Net Qualifying Capacity (NQC) for that Project; the Project is listed on the CAISO NQC List and is located in the Local Capacity Area listed in Appendix B, as identified in the CAISO Final Local Capacity Technical Study for the Shown Term; [the Project and its owner and operator have all Governmental Approvals necessary for the Project to operate, generate and deliver Showing Quantity and for Project Owner and operator to legally perform its obligations under the Provider Supply Agreement; there is not pending or, to its knowledge, threatened against it, the Project Owner or operator or any of their respective Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under the Provider Supply Agreement; Provider Supply Agreement is in full force and effect; neither Provider nor the Project Owner is in default under the Provider Supply Agreement; and]6 as of the date of the relevant Compliance Showing, Provider represents and warrants to CPE that Provider owns or has the exclusive right to all of the Capacity Attributes comprising the Showing Quantity from the Project. INDEMNIFICATION AND INSURANCE Indemnity by Provider . Provider shall release, defend, indemnify and hold harmless CPE, its directors, officers, agents, attorneys, representatives and Affiliates (“CPE Group”) against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with (i) Provider’s provision of the Showing Quantity or performance, or failure to perform, any of the Showing Commitment Actions, (ii) the ownership, development, construction, operation and/or maintenance of the Project; (iii) Third Party Claims arising from Provider’s actions or inactions, including Provider’s breach of this Agreement or other agreements related to the development, construction, ownership, operation and/or maintenance of the Project; (iv) any environmental matters associated with the Project, including the disposal and transportation of Hazardous Substances by or on behalf of Provider or at Provider’s direction or agreement; (v) Third Party Claims arising under any agreement between Provider and the owner or operator of the Project, as applicable, or their respective Affiliates; or (vi) Third Claims resulting from any violation of any applicable Law, or requirements of Participating Transmission Owner, Utility Distribution Company, CAISO, NERC, WECC or Reliability Organization by Provider, the owner or operator of the Project, as applicable, or their respective Affiliates; in each case including any loss, claim, action or suit, for or on account of injury to, bodily or otherwise, or death of, persons, or for damage to or destruction or economic loss of property belonging to CPE, Provider, the owner or operator of the Project, as applicable, or their respective Affiliates, or others, excepting only such Indemnifiable Losses, to the extent solely caused by the willful misconduct or gross negligence of a member of CPE Group. Provider shall indemnify, defend and hold CPE Group harmless from and against all liabilities, damages, claims, losses, costs or expenses (including, without limitation, attorneys’ fees) incurred by or brought against CPE in connection with Environmental Costs. No Indemnity by CPE . CPE does not indemnify Provider. Notice of Claim .
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date and the Approval Date, each Party hereby represents and warrants to the other Party that:
6.1.1 : It is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation; Except as provided in Section 2.02 and Article Five, and is qualified it has all regulatory authorizations necessary for it to conduct its business in all jurisdictions necessary to legally perform its obligations hereunder;
6.1.2 under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02) and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it or any of its property is bound, or provisions of law Applicable Laws applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 ; This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; It is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which could result in it becoming Bankrupt; There is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before threatened against it any Governmental Authority, legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, and will continue to be for the Term, a Forward Contract Merchant both generally and ; No Event of Default with respect to the RECs Delivered it has occurred and purchased is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement;
6.1.8 ; It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of all Product, as applicable, under this Agreement. Representations and Warranties of Seller. Seller represents and warrants to SDG&E that: As of [Insert date], Seller has Site Control. [NOTE to bidders: will be modified based on resource type] [NOTE: to be inserted: applicable representation to maintain PDR/RDRR status.]
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It 2.1.1 such Party: (A) is a corporation duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, and is qualified to conduct its business in all jurisdictions necessary to perform its obligations hereunder;
6.1.2 The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents, any agreement to which it is a party or by which it or any of incorporated; (B) has the corporate power and authority and the legal right to own and operate its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is boundnow being conducted; and (C) is in compliance with all requirements of applicable law, except to the extent that any noncompliance would not reasonably be expected to have a material adverse effect on the properties, business, financial or provisions other condition of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To would not materially adversely affect such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is, 2.1.2 such Party: (A) has the corporate power and will continue to be for authority and the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision legal right to enter into this Agreement and as to whether perform its obligations hereunder; and (B) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement is appropriate or proper for it based upon and the performance of its own judgmentobligations hereunder. The Agreement has been duly executed and delivered on behalf of such Party, is not relying upon the advice or recommendations of the other and constitutes a legal, valid, binding obligation, enforceable against such Party in so doingaccordance with its terms except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and subject to the general principles of equity (regardless of whether enforcement is capable sought in a court of assessing law or equity);
2.1.3 such Party has obtained all necessary consents, approvals and authorizations of all governmental authorities and Third Parties required to be obtained by such Party in connection with this Agreement, other than any approvals required of applicable Regulatory Authorities as may be required under this Agreement from time to time; and
2.1.4 the merits of execution and understanding, and understands and accepts, the terms, conditions and risks delivery of this AgreementAgreement and the performance of such Party’s obligations hereunder: (A) do not conflict with or violate any requirement of all applicable national, federal, state and local laws, rules or regulations; and (B) do not conflict with, or constitute a default under, any contractual obligation of such Party.
Appears in 1 contract
Samples: Software Development and License Agreement (Volcano CORP)
Representations and Warranties of Both Parties. As of On the Effective Execution Date, each Party hereby represents and warrants to the other Party that:
6.1.1 (a) It is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization formation;
(b) Except for CPUC Approval in the case of Buyer, it has or formation, and is qualified will timely acquire all regulatory authorizations necessary for it to conduct its business in all jurisdictions necessary to legally perform its obligations hereunderunder this Agreement;
6.1.2 (c) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it any law, rule, regulation, order or any of its property is bound, or provisions of law the like applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 (d) This Agreement constitutes its legal, legally valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred (e) It is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it which would result in it being or become Bankrupt; provided that, this Section 7.1(e) shall not apply with respect to Buyer until the effective date of the Buyer’s plan of reorganization in the Chapter 11 Cases has occurred;
(f) There is not pending or, to its knowledge, threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is; provided that, and will continue to be for the Term, a Forward Contract Merchant both generally and this Section 7.1(f) shall not apply with respect to Buyer until the RECs Delivered and purchased under this Agreementeffective date of the Buyer’s plan of reorganization in the Chapter 11 Cases has occurred;
6.1.8 (g) It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions conditions, and risks of this Agreement; and
(h) It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Demand Response Auction Mechanism Resource Purchase Agreement
Representations and Warranties of Both Parties. As Each Party hereby represents and warrants as of the Effective Date, each Party hereby represents and warrants covenants, to the other Party that:
6.1.1 It is duly organized or formed, validly existing 10.1.1. it has the power and in good standing under authority and the laws of the jurisdiction of legal right to enter into this Agreement and perform its organization or formationobligations hereunder, and is qualified that it has taken all necessary action on its part required to conduct its business in all jurisdictions necessary to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 10.1.2. this Agreement are within its powers, have has been duly authorized by executed and delivered on behalf of such Party and constitutes a legal, valid and binding obligation of such Party and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered a proceeding at law or equity;
10.1.3. all necessary action consents, approvals and do not violate any authorizations of the terms or conditions in its governing documents, any agreement all Regulatory Authorities and other parties required to which it is a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required be obtained by such Party in connection with the execution, execution and delivery or of this Agreement and the performance of this Agreementits obligations hereunder have been obtained;
6.1.4 This 10.1.4. the execution and delivery of this Agreement constitutes and the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of Applicable Law or any provision of the certificate of incorporation, bylaws or any similar instrument of such Party, as applicable, in any material way, and (b) do not conflict with, violate, or breach or constitute a default or require any consent not already obtained under, any contractual obligation or court or administrative order by which such Party is bound;
10.1.5. All employees, consultants, or (sub)contractors (except academic collaborators or Third Parties under the Permitted Licenses or Prior Agreements) of such Party or Affiliates performing development activities hereunder on behalf of such Party are, and such Party hereby covenants to the other Party that they will be, obligated to assign all right, title and interest in and to any inventions developed by them, whether or not patentable, to such Party or Affiliate, respectively, as the sole owner thereof;
10.1.6. Such Party will, and such Party hereby covenants to the other Party that it will, perform its legalactivities pursuant to this Agreement in compliance with good laboratory and clinical practices and cGMP and Applicable Law, valid in each case as applicable under the laws and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization regulations of the country and other laws affecting creditors’ rights generallythe state and local government wherein such activities are conducted, and with regard to equitable remedies, respect to the discretion care, handling and use in development activities hereunder of the court before which proceedings to obtain same may be pending;
6.1.5 No Event any non-human animals by or on behalf of Default has occurred and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actionswill at all times comply (and will ensure compliance by any of its subcontractors) with all applicable national, proceedingsfederal, judgmentsstate and local laws, rulings or orders, issued by or pending before any Governmental Authority, that would materially adversely affect its ability to perform regulations and ordinances in performing its obligations under this Agreement;; and
6.1.7 It is10.1.7. Such Party is not debarred under the United States Federal Food, Drug and Cosmetic Act or comparable Applicable Laws and it does not, and will continue to be for not during the Agreement Term, a Forward Contract Merchant both generally employ or use the services of any person or entity who is debarred, in connection with the development, manufacture or commercialization of the Compounds or Products. If either Party becomes aware of the debarment or threatened debarment of any person or entity providing services to such Party, including the Party itself and with respect its Affiliates or Sublicensees, which directly or indirectly relate to the RECs Delivered and purchased activities under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party will be immediately notified in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreementwriting.
Appears in 1 contract
Samples: Collaboration, License and Development Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As (a) On and as of the date hereof and as of the Effective Date, each Party hereby represents and warrants to the other Party that:
6.1.1 It : (i) it is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, formation and is qualified to conduct its business in all jurisdictions each jurisdiction within which this Agreement will be performed by it; (ii) except as detailed on Schedule 6, there are no regulatory approvals necessary for it to legally perform its obligations hereunder;
6.1.2 The under this Agreement which have not been obtained; (iii) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary corporate action and do not violate any of the terms or and conditions in its governing documents, any agreement contracts to which it is a party or by which it or any of its property is bound, or provisions of law Law applicable to it;
6.1.3 Except as set forth in and as required by ; (iv) this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its a legal, valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to any equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred and defenses; (v) there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings Bankruptcy Events pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s knowledge, ; (vi) there are no actions, proceedings, judgments, rulings or orders, issued by or pending before any Governmental Authority, Legal Proceedings that would be reasonably likely to materially adversely affect the legality or validity of or its ability to perform its obligations under this Agreement;
6.1.7 It is, ; and will continue (vii) it has knowledge and experience in financial matters and the electric industry that enable it to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing evaluate the merits of and understanding, and understands and accepts, the terms, conditions and risks of entering into this Agreement.
(b) The NSTAR CompaniesBECo and EPMI each represent and warrant to the other that no broker, finder or other Person is entitled to any brokerage fees, commissions or finder's fees in connection with the transaction contemplated hereby by reason of any action taken by the Party making such representation. The NSTAR CompaniesBECo and EPMI shall pay to the other or otherwise discharge, and shall indemnify and hold harmless the other from and against, any and all claims or liabilities for all brokerage fees, commissions and finder's fees incurred by reason of any action taken by such Party.
(c) Each Party covenants that it will cause all of its representations and warranties to be true and correct throughout the Term.
Appears in 1 contract
Samples: Wholesale Power Supply Agreement
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Effective Date, that:
6.1.1 It 8.1.1. such Party is duly organized or formedorganized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization or formation, and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
8.1.2. such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 8.1.3. this Agreement are within its powers, have has been duly authorized by all necessary action executed and do not violate any delivered on behalf of the terms or conditions in its governing documentssuch Party, any agreement to which it is and constitutes a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its termsthe terms hereof;
8.1.4. the execution, subject to bankruptcydelivery and performance of this Agreement by such Party will not constitute a default under or conflict with any agreement, insolvencyinstrument or understanding, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remediesoral or written, to the discretion which it is a party or by which it is bound, or violate any law or regulation of the court before which proceedings to obtain same may be pendingany court, governmental body or administrative or other agency having jurisdiction over such Party;
6.1.5 No Event 8.1.5. no government authorization, consent, approval, license, exemption of Default has occurred and there are no bankruptcyor filing or registration with any court or governmental department, insolvencycommission, reorganizationboard, receivership bureau, agency or other arrangement proceedings pending instrumentality, domestic or being foreign, under any applicable laws, rules or regulations currently in effect, is or will be necessary for, or in connection with, the transaction contemplated by itthis Agreement or any other agreement or instrument executed in connection herewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;Agreement and such other agreements; and
6.1.7 It is8.1.6. it has not employed (and, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for best of its own accountknowledge, has not used a contractor or consultant that has employed) and in the future will not employ (or, to the best of its knowledge, use any contractor or consultant that employs, provided that such Party may reasonably rely on a representation made its own independent decision by such contractor or consultant) any Person debarred by the FDA (or subject to enter into this Agreement and as to whether this Agreement a similar sanction of EMA or foreign equivalent), or any Person which is appropriate the subject of an FDA debarment investigation or proper for it based upon its own judgmentproceeding (or similar proceeding of EMA or foreign equivalent), is not relying upon in the advice or recommendations conduct of the other Party in so doing, Pre-Clinical Studies or Clinical Studies of the Product and is capable of assessing its activities under the merits of and understanding, and understands and accepts, the terms, conditions and risks of this AgreementISIS-DMPKRx R&D Plan.
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Samples: DMPK Research, Development, Option and License Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of Both Parties. As of On the Effective Execution Date, each Party hereby represents and warrants warranties to the other Party that:
6.1.1 It : it is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization or formation, formation and is qualified to conduct its transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; it has all Governmental Approvals necessary for it to legally perform its obligations hereunder;
6.1.2 The under this Agreement; it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or and conditions in its governing documents, any contracts to which it is a party or any Law, rule, regulation, order or the like applicable to it; execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which it or any of its property respective properties is bound, bound or provisions of law applicable to it;
6.1.3 Except as set forth affected; this Agreement and each other document executed and delivered in and as required by accordance with this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending;
6.1.5 No Event of Default has occurred any Equitable Defenses; it is not Bankrupt and there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by itit or, or to its knowledge knowledge, threatened against it;
6.1.6 To such Party’s it which would result in it being or becoming Bankrupt, other than, in the case of CPE, the Bankruptcy Cases; there is not pending or, to its knowledge, there are no actions, proceedings, judgments, rulings threatened against it or orders, issued by or pending before any Governmental Authority, of its Affiliates any legal proceedings that would could materially adversely affect its ability to perform its obligations under this Agreement;
6.1.7 It is; no Early Termination Event has occurred and is continuing, and will continue to be for the Term, no such event or circumstance would occur as a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased result of its entering into or performing its obligations under this Agreement;
6.1.8 It ; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (as in effect as of the Execution Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to provide Showing Quantity on the terms and conditions of this Agreement; and it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party CPE 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. Representations and Warranties of Provider . Provider represents and warrants to CPE throughout the Shown Term that: all of the Capacity Attributes related to the Showing Quantity shall be from the Project exclusively; no Capacity Attributes of the Project that form part of the Showing Quantity or that are otherwise required for CPE to use the Showing Quantity for the purposes of the Compliance Showings for any day of any Showing Year and any Showing Month of the Shown Term has been committed or sold by Provider to any third party in order to satisfy any Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets; the Project is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO; each Project’s Scheduling Coordinator, owner and operator is obligated to comply with applicable Law, including the CAISO Tariff, relating to any of the Capacity Attributes comprising the Showing Quantity and the Project, including the operation of the Project; the aggregation of all amounts of Capacity Attributes that Provider has provided for the Project under this Agreement for each day included in the Shown Term does not exceed the amount of the Project’s Net Qualifying Capacity (NQC) for that Project; the Project is listed on the CAISO NQC List and is located in the Local Capacity Area listed in Appendix B, as identified in the CAISO Final Local Capacity Technical Study for the Shown Term; [the Project and its owner and operator have all Governmental Approvals necessary for the Project to operate, generate and deliver Showing Quantity and for Project Owner and operator to legally perform its obligations under the Provider Supply Agreement; there is not pending or, to its knowledge, threatened against it, the Project Owner or operator or any of their respective Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under the Provider Supply Agreement; Provider Supply Agreement is in full force and effect; neither Provider nor the Project Owner is in default under the Provider Supply Agreement; and]6 as of the date of the relevant Compliance Showing, Provider represents and warrants to CPE that Provider owns or has the exclusive right to all of the Capacity Attributes related to the Showing Quantity from the Project. INDEMNIFICATION AND INSURANCE Indemnity by Provider . Provider shall release, defend, indemnify and hold harmless CPE, its directors, officers, agents, attorneys, representatives and Affiliates (“CPE Group”) against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with (i) Provider’s provision, or failure to provide, of the Showing Quantity, performance, or failure to perform, any of the Showing Commitment Actions or failure to submit any Proof of Commitment, (ii) the ownership, development, construction, operation and/or maintenance of the Project; (iii) Third Party Claims arising from Provider’s actions or inactions, including Provider’s breach of this Agreement or other agreements related to the development, construction, ownership, operation and/or maintenance of the Project; (iv) any environmental matters associated with the Project, including the disposal and transportation of Hazardous Substances by or on behalf of Provider or at Provider’s direction or agreement; (v) Third Party Claims arising under any agreement between Provider and the owner or operator of the Project, as applicable, or their respective Affiliates; or (vi) Third Claims resulting from any violation of any applicable Law, or requirements of Participating Transmission Owner, Utility Distribution Company, CAISO, NERC, WECC or Reliability Organization by Provider, the owner or operator of the Project, as applicable, or their respective Affiliates; in each case including any loss, claim, action or suit, for or on account of injury to, bodily or otherwise, or death of, persons, or for damage to or destruction or economic loss of property belonging to CPE, Provider, the owner or operator of the Project, as applicable, or their respective Affiliates, or others, excepting only such Indemnifiable Losses, to the extent solely caused by the willful misconduct or gross negligence of a member of CPE Group. Provider shall indemnify, defend and hold CPE Group harmless from and against all liabilities, damages, claims, losses, costs or expenses (including, without limitation, attorneys’ fees) incurred by or brought against CPE in connection with Environmental Costs. No Indemnity by CPE . CPE does not indemnify Provider. Notice of Claim .
Appears in 1 contract
Representations and Warranties of Both Parties. As of the Effective Date, each Each Party hereby represents and warrants to the other Party Party, as of the Amendment Date, that:
6.1.1 It 8.1.1. such Party is duly organized or formedorganized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization or formation, and is qualified has full corporate power and authority to conduct enter into this Agreement and to carry out the provisions hereof;
8.1.2. such Party has taken all necessary action on its business in all jurisdictions necessary part to perform authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
6.1.2 The execution, delivery and performance of 8.1.3. this Agreement are within its powers, have has been duly authorized by all necessary action executed and do not violate any delivered on behalf of the terms or conditions in its governing documentssuch Party, any agreement to which it is and constitutes a party or by which it or any of its property is bound, or provisions of law applicable to it;
6.1.3 Except as set forth in and as required by this Agreement, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is required by such Party in connection with the execution, delivery or performance of this Agreement;
6.1.4 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its termsthe terms hereof;
8.1.4. the execution, subject to bankruptcydelivery and performance of this Agreement by such Party will not constitute a default under or conflict with any agreement, insolvencyinstrument or understanding, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remediesoral or written, to the discretion which it is a party or by which it is bound, or violate any Law or regulation of the court before which proceedings to obtain same may be pendingany court, governmental body or administrative or other agency having jurisdiction over such Party;
6.1.5 No Event 8.1.5. no government authorization, consent, approval, license, exemption of Default has occurred and there are no bankruptcyor filing or registration with any court or governmental department, insolvencycommission, reorganizationboard, receivership bureau, agency or other arrangement proceedings pending instrumentality, domestic or being foreign, under any Applicable Laws, rules or regulations currently in effect, is or will be necessary for, or in connection with, the transaction contemplated by itthis Agreement or any other agreement or instrument executed in connection herewith, or to its knowledge threatened against it;
6.1.6 To such Party’s knowledge, there are no actions, proceedings, judgments, rulings or orders, issued for the performance by or pending before any Governmental Authority, that would materially adversely affect its ability to perform it of its obligations under this Agreement;Agreement and such other agreements; and
6.1.7 It is8.1.6. it has not employed (and, and will continue to be for the Term, a Forward Contract Merchant both generally and with respect to the RECs Delivered and purchased under this Agreement;
6.1.8 It is acting for best of its own accountknowledge, has not used a contractor or consultant that has employed) and in the future will not employ (or, to the best of its knowledge, use any contractor or consultant that employs (provided that such Party may reasonably rely on a representation made its own independent decision by such contractor or consultant)) any Person debarred by the FDA (or subject to enter into this Agreement and as to whether this Agreement a similar sanction of EMA or foreign equivalent), or any Person which is appropriate the subject of an FDA debarment investigation or proper for it based upon its own judgmentproceeding (or similar proceeding of EMA or foreign equivalent), is not relying upon in the advice or recommendations conduct of the other Party in so doing, Pre-Clinical Studies or Clinical Studies of the Product and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreementits activities under each Collaboration Program.
Appears in 1 contract
