Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that: A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party. B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable. C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing. D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document. E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 3 contracts
Samples: Credit Agreement (National Financial Partners Corp), Credit Agreement (National Financial Partners Corp), Credit Agreement (National Financial Partners Corp)
Representations, Warranties and Covenants. Seller hereby represents, warrants and covenants to and with Buyer as follows:
(a) From and after the Effective Date hereof, Seller shall not enter into any contracts, agreements, encumbrances, liens, or other documents or instruments for or regarding the sale, transfer, disposition, assignment, conveyance, encumbrance, lien, pledge of the Property, or any part thereof or any interest therein, or which may result in any lien or encumbrance with regard to the Property, or any part thereof, or an interest therein, without the prior written consent of Buyer.
(b) The Borrower hereby represents and warrants toperson(s) executing this Agreement on behalf of Seller is fully authorized to do so by Seller, and covenants any and agrees withall actions required to make this Agreement and the performance thereof legally binding obligations of Seller, have been duly and legally taken. No further consent, authorization or approval of any person or entity is required for Seller to enter into or perform this transaction.
(c) From and after the Effective Date hereof, Seller will not cause, permit, suffer, or allow any change, modification, or alteration to be made to the Property, or any part or portion thereof, or its physical condition without the prior written consent of Buyer.
(d) To Seller's actual current knowledge, there are no leases relating to the Property, or any portion thereof.
(e) To Seller's actual current knowledge, there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, to which Seller is a party, affecting the Property, or any portion thereof, or relating to or arising out of the ownership of the Property, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.
(f) To Seller's actual current knowledge, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment Agreement and the Loan Documents consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Seller of any provision of any agreements or other instrument to which any Loan Party Seller is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement which Seller may be subject to bankruptcyalthough not a party, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether result in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance constitute a violation or breach of any other equitable remedy judgment, order, writ, injunction or relief to enforce any right thereunderdecree issued against Seller.
Appears in 3 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement, Sale and Purchase Agreement
Representations, Warranties and Covenants. The Borrower hereby represents and warrants tofollowing representations, warranties and covenants are in addition to those made elsewhere in this Agreement.
(a) Each party hereto hereby represents, warrants and agrees withcovenants, as applicable, to the Administrative Agent and the Lenders other party that:
A. The execution (i) it will comply with all laws, rules and regulations of governmental authorities and regulatory agencies applicable to it by virtue of entering into and performing this Agreement;
(ii) the execution, performance and delivery of this Amendment Agreement by it will not violate any of its contractual obligations or any applicable laws, rules and regulations of governmental authorities and regulatory agencies;
(iii) it has full power and authority under applicable law, and has taken all necessary actions, to enter into and perform this Agreement; the Loan Documents to which any Loan Party person executing this Agreement on its behalf is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit empowered to execute and deliver this Agreement; and this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the its legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with its respective terms; and
(iv) no consent or authorization of, except filing with, or other act by or in respect of any governmental authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement.
(b) You hereby represent and warrant to us that:
(i) you are duly registered as a broker-dealer pursuant to the enforcement may Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(ii) the Fund is registered as an investment company under the 1940 Act and the Shares are registered under the Securities Act of 1933, as amended.
(c) We hereby represent, warrant and covenant to you, as applicable, that:
(i) if we are not registered as a broker-dealer pursuant to the Exchange Act, we are not required to be subject so registered in order to bankruptcyperform the services specified in this Agreement;
(ii) if we are not registered as a transfer agent pursuant to the Exchange Act, insolvencywe are not required to be so registered in order to perform the services specified in this Agreement;
(iii) if we are required to be a member of the National Association of Securities Dealers, reorganizationInc. (the "NASD"), moratorium we are a member in good standing and similar laws affecting will comply with the rights and remedies NASD's Conduct Rules, including any requirements as to suitability of creditors generally or Shares for Clients;
(iv) we will not be a "fiduciary" with respect to the application performance of principles this Agreement for any Plan, as such term is defined in Section 3(21) of equitythe Employee Retirement Income Security Act of 1974, whether in any action at law or proceeding in equityas amended ("ERISA"), and subject to the availability Section 4975 of the remedy Internal Revenue Code of specific 1986, as amended (the "Code");
(v) our receipt of fees under and the performance of the services specified in this Agreement will not constitute a non-exempt "prohibited transaction" as such term is defined in Section 406 of ERISA and Section 4975 of the Code;
(vi) we have full authority to act on behalf of Clients in the manner contemplated by this Agreement, and each time we so act we shall be deemed to have restated this representation and warranty;
(vii) we will impose any applicable redemption fee as described in the Fund's prospectus;
(viii) we will not enter into any arrangements, formal or informal, with any Client to permit or facilitate the use of market timing or excessive trading strategies, we have implemented reasonable procedures to monitor for such activities, and we will cooperate with your reasonable requests in taking steps to deter and to detect the use of market timing or excessive trading strategies by any Client, including providing identity information (solely for the purpose of deterring and detecting the use of market timing or excessive trading strategies by Clients) and other equitable remedy or relief to enforce any right thereunderinformation you reasonably request; and
(ix) we will maintain insurance coverage issued by a qualified insurance carrier appropriate in light of our duties under this Agreement.
Appears in 3 contracts
Samples: Servicing Agreement (Lazard Funds Inc), Servicing Agreement (Lazard Funds Inc), Servicing Agreement (Lazard Funds Inc)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants tofollowing representations, warranties and covenants are in addition to those made elsewhere in this Agreement.
(a) Each party hereto hereby represents, warrants and agrees withcovenants, as applicable, to the Administrative Agent and the Lenders other party that:
A. The execution (i) it is duly organized and validly existing in good standing under the laws of the jurisdiction in which it was organized;
(ii) it will comply with all laws and rules and regulations of governmental authorities and regulatory agencies applicable to it by virtue of entering into and performing this Agreement;
(iii) its execution, performance and delivery of this Amendment Agreement will not violate any of its contractual obligations or any applicable laws and rules and regulations of governmental authorities and regulatory agencies;
(iv) it has full power and authority under applicable law, and has taken all necessary actions, to enter into and perform this Agreement; the Loan Documents to which any Loan Party person executing this Agreement on its behalf is a party have been duly authorized and empowered to execute and deliver this Agreement; and, assuming due and valid execution and delivery by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of party, this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the its legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with its respective terms; and
(v) no consent or authorization of, except filing with, or other act by or in respect of any governmental authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement.
(b) Distributor hereby represents and warrants to Intermediary that:
(i) it is duly registered as a broker-dealer pursuant to the enforcement Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
(ii) the Fund is registered as an investment company under the 1940 Act, and the Shares are registered under the Securities Act.
(c) Intermediary hereby represents, warrants and covenants to, and agrees with, Distributor, as applicable, that:
(i) if Intermediary is not registered as a broker-dealer pursuant to the Exchange Act, Intermediary is not required to be so registered in order to perform the services, and receive the fees, specified in this Agreement;
(ii) if Intermediary is not registered as a transfer agent pursuant to the Exchange Act, Intermediary is not required to be so registered in order to perform the services, and receive the fees, specified in this Agreement;
(iii) if Intermediary is required to be a member of the Financial Industry Regulatory Authority (“FINRA”), Intermediary is a member in good standing and will comply with applicable rules of FINRA, including any requirements as to suitability of Shares for Clients, and Intermediary will inform Distributor promptly of any pending or threatened action or proceeding by FINRA bearing on Intermediary’s membership with FINRA and of any suspension or termination of such membership;
(iv) Intermediary will ensure that all fees and compensation received pursuant to this Agreement, including compensation referred to herein as described in the Prospectuses, are disclosed to Clients as required by law;
(v) Intermediary will not be a “fiduciary” (within the meaning of Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as it may be amended from time to time, in connection with the performance of this Agreement and any transactions contemplated hereby with respect to any person or entity subject to bankruptcyTitle I of ERISA, insolvencySection 4975 of the Internal Revenue Code of 1986, reorganizationas amended (the “Code”) or any governmental plan (within the meaning of Section 3(32) of ERISA;
(vi) Intermediary’s receipt of fees and other compensation, moratorium direct and indirect under and the performance of the services specified in this Agreement and the transactions related thereto will not constitute a non-exempt “prohibited transaction” as such term is defined in Section 406 of ERISA and Section 4975 of the Code, or with respect to any governmental plan, any similar laws affecting prohibition under applicable law;
(vii) Intermediary has full authority to act on behalf of Clients in the rights manner contemplated by this Agreement, and remedies each time Intermediary so acts it shall be deemed to have restated this representation and warranty;
(viii) Distributor and the Fund and its agent are entitled to rely on oral and written instructions reasonably believed to be genuine and to have been given by or on behalf of creditors generally Intermediary;
(ix) Intermediary will, on reasonable request of Distributor, (A) provide Distributor with copies of its compliance policies and procedures related to performance of this Agreement or the application agreements, representations, warranties, covenants or agreements of principles of equityIntermediary herein (“Compliance Matters”), whether in any action at law (B) provide Distributor with such certifications and representations regarding Compliance Matters and (C) permit Distributor or proceeding in equitythe Fund or its agent, as well as appropriate regulatory authorities, to obtain information and records, and subject to inspect Intermediary’s facilities, relating to Compliance Matters; Intermediary will notify Distributor regarding material changes to compliance policies and procedures related to Compliance Matters that have been provided to Distributor within a reasonable period of time following the availability effectiveness of such changes;
(x) Intermediary will impose any applicable redemption fee on Shares as described in the remedy Prospectuses;
(xi) Intermediary will not withhold placing orders received from Clients so as to profit as a result of specific performance such withholding by a change in net asset value or otherwise;
(xii) Intermediary will not enter into any arrangements, formal or informal, with any Client to permit or facilitate the use of any other equitable remedy market timing or relief excessive trading strategies, and Intermediary has implemented reasonable procedures to enforce any right thereundermonitor for such activities; and
(xiii) Intermediary will maintain insurance coverage issued by a qualified insurance carrier appropriate in light of its duties under this Agreement.
Appears in 3 contracts
Samples: Financial Intermediary Agreement (Lazard Funds Inc), Financial Intermediary Agreement (Baron Select Funds), Financial Intermediary Agreement (BARON INVESTMENT FUNDS TRUST (F/K/a BARON ASSET FUND))
Representations, Warranties and Covenants. The Borrower hereby Argus represents and warrants toto Enron that (i) it has full power and authority, and covenants has taken all action necessary, to execute and agrees withdeliver this Agreement and to fulfill its obligations hereunder, (ii) the Administrative Agent making and the Lenders that:
A. The execution and delivery performance by it of this Amendment Agreement does not and the Loan Documents shall not violate any law or regulation applicable to it, its certificate of incorporation, by-laws or other organizational documents or any other agreement to which any Loan Party it is a party have or by which it is bound, (iii) this Agreement has been duly authorized executed and delivered by all requisite action on the part of such Loan Party.
B. The representations it and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the its legal, valid and binding obligation of each Loan Party signatory theretoobligations, enforceable against it in accordance with its the respective terms, terms hereof (except as to the enforcement extent that the enforceability thereof may be subject to limited by bankruptcy, insolvency, reorganization, moratorium and insolvency or other similar laws of general applicability affecting enforcement of creditors’ rights generally, or by a court’s discretion in relation to equitable remedies), (iv) all approvals, authorizations or other actions by, or filings with, any governmental authority or other person or entity necessary for the rights and remedies validity or enforceability of creditors generally its obligations under this Agreement have been obtained, (v) it is the sole owner or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability a valid licensee of the remedy Argus Authorized Trademarks, with full and absolute right to license the Argus Trademarks to Enron as contemplated herein, (vi) no part of specific performance the Reports or Argus Authorized Trademarks shall infringe upon the copyrights, trademarks, trade secrets, patents, intellectual property rights or any other proprietary rights of any other equitable remedy person or relief entity, (vii) the accuracy of all Reports provided under this Agreement shall be true and correct as of the date provided, (viii) the performance of Argus’ obligations under this Agreement shall not violate any applicable law, rule, regulation, order or injunction and shall not violate any intellectual property rights in force of any third party, and (ix) it shall employ and dedicate sufficient resources and qualified personnel in order to enforce any right thereunderfully, properly and adequately perform the required services and activities set forth in this Agreement.
Appears in 3 contracts
Samples: Information Services Agreement, Information Services Agreement, Information Services Agreement
Representations, Warranties and Covenants. The Borrower hereby represents Each Party represents, warrants and warrants tocovenants to the other Parties the following:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and covenants has full corporate power and agrees withauthority to enter into this Agreement and to carry out the provisions hereof;
(b) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, the Administrative Agent and the Lenders that:person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate action;
A. The (c) all necessary consents, approvals and authorizations of all Regulatory Authorities and other Third Parties required to be obtained by such it in connection with the execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the performance of its obligations hereunder have been obtained, other Loan Documents are true and correct in all material respects on and as than the delivery of written assignment of the date NDA for the Product to the FDA;
(d) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms;
(e) the execution, delivery, and performance of this Amendment as though made at and as Agreement by it does not conflict with or result in a breach of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions provisions of any Loan Document.agreement, instrument, or understanding, oral or written, to which it is a Party or by which it is bound, nor violate any material law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over it;
E. Each (f) it has not granted and will not during the Term grant any right to any Third Party that would conflict with the rights granted to the other Parties hereunder;
(g) it shall comply and cause its employees and consultants who will be undertaking any activities related to this Agreement or the Licensed Products to comply, with all Applicable Laws respecting such activities; and
(h) neither its name nor the name of any of its employees or consultants who will be undertaking any activities related to this Agreement or the Licensed Products are listed on the debarment list maintained by the FDA pursuant to 21 U.S.C. Sections 335(a) and Section 335(b) and published on the internet at the following address (or any successor address): xxxx://xxx.xxx.xxx/ora/compliance_ref/debar/default.htm. In the course of the Loan Documents constitutes Development, Manufacture and Commercialization of the legalLicensed Products prior to or pursuant to this Agreement, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityhas not used, and subject during the Term will not use, any employee or consultant that is debarred by any Regulatory Authority or, to the availability best of its knowledge, is the remedy subject of specific performance debarment proceedings by any Regulatory Authority. If it learns that its employee or consultant performing on its behalf under this Agreement has been debarred by any Regulatory Authority, or has become the subject of debarment proceedings by any Regulatory Authority, it shall so promptly notify the other equitable remedy Party and shall prohibit such employee or relief to enforce any right thereunderconsultant from performing on its behalf under this Agreement.
Appears in 3 contracts
Samples: License Agreement, License Agreement (Salix Pharmaceuticals LTD), License Agreement (Santarus Inc)
Representations, Warranties and Covenants. The Borrower hereby A. JPMDS represents and warrants tothat: (i) It has the requisite authority to enter into this Agreement and to make the payments contemplated herein; and (ii) The payment to Financial Intermediary of any fees pursuant hereto is authorized under the Distribution Agreement and the distribution plans adopted by the Trusts.
B. Financial Intermediary represents, and covenants warrants and agrees with, the Administrative Agent and the Lenders that:
A. The execution (i) It is registered a broker-dealer under the Securities Exchange Act of 1934, as amended (“Exchange Act”) and delivery any applicable states securities laws, or it is not required to be so registered as a result of entering into and performing the services set forth in this Agreement; that it is a member of the Financial Industry Regulatory Authority (“FINRA”); that Customers’ accounts are insured by the Securities Investors Protection Corporation (“SIPC”); and that, during the term of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized Agreement, it will abide by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained rules and regulations of FINRA including, without limitation, the FINRA Conduct Rules. Financial Intermediary agrees to notify JPMDS immediately in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as event of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier datethe termination of its coverage by SIPC, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting its expulsion or suspension from transactions prior FINRA or any foreign equivalent or (c) its being found to have violated any applicable federal or state law, rule or regulation arising out of its activities as a broker-dealer or in connection with this Agreement, or which may otherwise affect in any material way its ability to act in accordance with the date hereof which were expressly permitted under the Loan Documentsterms of this Agreement. Financial Intermediary’s expulsion from FINRA or any foreign equivalent will automatically terminate this Agreement immediately without notice. Suspension of Financial Intermediary from FINRA for violation of any applicable federal or state law, rule or regulation will terminate this Agreement effective immediately upon JPMDS’ written notice of termination to Financial Intermediary; or It is a bank, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As that term is defined in Section 3(a)(6) of the Amendment Closing Date (Exchange Act, that engages in activities described in Section 3(a)(4) of the Exchange Act and that, during the term of this Agreement, it will abide by the rules and regulations of those state and federal authorities with appropriate jurisdiction over the Financial Intermediary, especially those regulations dealing with the activities of the Financial Intermediary as defined below)described under this Agreement. Financial Intermediary agrees to notify JPMDS immediately of any action by or communication from state or federal banking authorities, no Loan Party has state securities authorities, the SEC, or any grounds, and hereby agrees not to challenge (other party which may affect its status as a bank or to allege or to pursue any matter, cause or claim arising under or with respect to), which may otherwise affect in any case based upon acts material way its ability to act in accordance with the terms of this Agreement. Any action or omissions decision of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, foregoing regulatory authorities or any court of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it appropriate jurisdiction which affects Financial Intermediary’s ability to act in accordance with the terms of this Agreement, including the loss of its respective termsexemption from registration as a broker, except as the enforcement may be subject will terminate this Agreement effective upon JPMDS’ written notice of termination to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.Financial Intermediary;
Appears in 3 contracts
Samples: Service Agreement and Sales Agreement (Jpmorgan Trust Ii), Service Agreement and Sales Agreement (Jpmorgan Trust Iv), Service Agreement and Sales Agreement (JPMorgan Trust I)
Representations, Warranties and Covenants. (a) Each of the Parties hereby represents, warrants and covenants to the other Party that:
(i) this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms. The Borrower hereby represents and warrants toexecution, delivery, and covenants and agrees performance of the Agreement by such Party does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a Party or by which it is bound, nor violate any law or regulation of any court, Governmental Body, or administrative or other agency having jurisdiction over it;
(ii) it is not aware of any government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Applicable Laws, currently in effect, necessary for, or in connection with, the Administrative Agent transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, or for the performance by it of its obligations under this Agreement and such other agreements (save for Regulatory Approvals, INDs and similar regulatory authorizations necessary for the Lenders Development or Commercialization of the Program Compounds and Program Products as contemplated hereunder);
(iii) such Party has not, and during the Term will not, grant any right to any Third Party relating to its respective Patents and Know-How which would conflict with the rights granted to the other Party hereunder; and
(iv) such Party will at all times and in all material respects comply with all Applicable Laws relating to its activities under this Agreement.
(b) Ardelyx represents, warrants and covenants as of the Effective Date (or as of such other /additional time as may be explicitly specified below) to Sanofi that:
A. The execution (i) Ardelyx is the sole owner of the entire right, title and delivery interest in (A) the Listed Patents existing as of the Effective Date and (B) the Licensed Know-How existing as of the Effective Date. Ardelyx has all rights necessary to grant the licenses under the Licensed Technology existing as of the Effective Date that it grants to Sanofi in this Amendment Agreement. Neither the Listed Patents nor the Licensed Know-How is subject to any lien or claim of ownership by any Third Party. True, complete and correct copies of the Loan Documents to which any Loan Party is a party complete file wrapper and other correspondence with patent authorities received or sent by or on behalf of Ardelyx in the course of prosecuting the Listed Patents have been duly authorized provided to Sanofi prior to the Effective Date.
(ii) The Listed Patents existing as of the Effective Date are being diligently prosecuted before the respective patent authorities in accordance with Applicable Law. All applicable fees due to patent authorities with respect to the filing and prosecution of the Listed Patents existing as of the Effective Date have been paid on or before the due date for payment (as such due date may be extended in accordance with Applicable Laws or patent authority rules and regulations).
(iii) As of the Effective Date, to Ardelyx’s Knowledge, there is no actual or threatened infringement or misappropriation of the Listed Patents or Licensed Know-How by all requisite action on any Person.
(iv) To Ardelyx’s Knowledge, the part manufacture, use, sale, offer for sale or import of Ardelyx Compounds as such Loan compounds exist as of the Effective Date in the Field will not infringe or misappropriate the Patents, other IPR or proprietary right of any Third Party.
B. The representations and warranties (v) Ardelyx has not received any written notice alleging that the Listed Patents existing as of the Loan Effective Date, if issued, would be invalid or unenforceable or that the Patent applications included in such Listed Patents will not proceed to grant. The conception, development and reduction to practice of the Listed Patents and Licensed Know-How existing as of the Effective Date have not constituted or involved the misappropriation of trade secrets or other proprietary rights of any Person. There have been no Third Party claims, judgments or settlements against Ardelyx or any of its Affiliates as a result of legal actions brought by Third Parties contained relating to the Regulatory Documentation, Listed Patents or Licensed Know-How, or amounts owed by Ardelyx or its Affiliates with respect to any such claims, judgments or settlements. No claim or litigation has been brought or threatened by any Person alleging that the Listed Patents existing as of the Effective Date, if issued, are or will be invalid or unenforceable, or that the Licensed Know-How existing as of the Effective Date is or will be invalid or unenforceable.
(vi) Ardelyx has not previously entered into any agreement, whether written or oral, with respect to, or otherwise assigned, transferred, licensed or conveyed its right, title or interest in or to, the Listed Patents or the Ardelyx Compounds, in each case existing as of the Effective Date (including by granting any covenant not to xxx with respect thereto). Ardelyx has not previously entered into any agreement, whether written or oral, with respect to the Licensed Know-How that would conflict with the rights granted to Sanofi hereunder. None of the license grants to AstraZeneca in the Credit AstraZeneca License Agreement conflict with the license grants to Sanofi under this Agreement.
(vii) The Listed Patents set forth in Exhibit A represent all Patents within Ardelyx’s Control as of the Effective Date that cover or claim the Exploitation of Ardelyx Compounds as of the Effective Date. There are no patentable inventions within Ardelyx’s Control as of the Effective Date that are not included in a Patent, but which, if included in a Patent, would cover or claim the composition, use or sale of Ardelyx Compounds.
(viii) Each Person who has contributed to the conception of inventions claimed in the Listed Patents existing as of the Effective Date has duly assigned and has executed an agreement assigning to Ardelyx such Person’s entire right, title and interest in and to such Listed Patents. To Ardelyx’s Knowledge, no current or former officer, employee, agent or consultant of Ardelyx is in violation of any term of any assignment or other equivalent agreement regarding or relevant to the ownership or protection of such Listed Patents.
(ix) Ardelyx has not been debarred by the FDA, is not subject to any similar sanction of other Loan Documents Regulatory Health Authorities in the Territory, and is not subject to any such debarment or similar sanction by any such Regulatory Health Authority, and Ardelyx has not used, and will not engage, in any capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a). Ardelyx shall inform Sanofi in writing immediately if it or any Person engaged by Ardelyx who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a) or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Ardelyx’s Knowledge, is threatened, relating to the debarment or conviction of Ardelyx or any such Person performing services hereunder.
(x) The inventions claimed or covered by the Listed Patents (A) were not conceived, discovered, developed, or otherwise made in connection with any research activities funded, in whole or in part, by the federal government of the United States or any agency thereof or any similar government funding statute anywhere in the world, (B) are true not a “subject invention” as that term is described in 35 U.S.C. Section 201(f), and (C) are not otherwise subject to the provisions of the Xxxx-Xxxx Act or any other similar government funding statute anywhere in the world.
(xi) Ardelyx has made available to Sanofi all Licensed Know-How and other information in its possession or Control as of the Effective Date regarding the Ardelyx Compounds that Sanofi has requested in writing Ardelyx make available, and such items are true, complete and correct in all material respects on and respects.
(xii) Ardelyx has no Affiliates existing as of the date Effective Date.
(c) Sanofi represents, warrants and covenants as of this Amendment as though made at and the Effective Date (or as of such dateother /additional time as may be explicitly specified below) to Ardelyx that:
(i) Sanofi has not been debarred by the FDA (and is not subject to any similar sanction of other Regulatory Health Authorities in the Territory), except and is not subject to any such debarment or similar sanction by any such Regulatory Health Authority, and Sanofi has not used, and will not engage, in any capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a). Sanofi shall inform Ardelyx in writing immediately if it or any Person engaged by Sanofi who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a), or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Sanofi’s knowledge, is threatened, relating to the extent debarment or conviction of Sanofi or any such Person performing services hereunder.
(aii) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty All employees of Sanofi or its Affiliates performing activities under this Agreement shall be true under an obligation to assign all right, title and correct interest in and to their inventions, information and discoveries, whether or not patentable, and IPRs therein, to Sanofi or its Affiliate(s) as the sole owner thereof. Ardelyx shall have no obligation to contribute to any remuneration of any inventor employed or previously employed by Sanofi or any of its Affiliates in respect of any such inventions, information and discoveries and IPRs therein that are so assigned to Sanofi or its Affiliate(s). Sanofi will pay all material respects as of such date only remuneration due to such inventors with respect to such inventions, information and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicablediscoveries and IPRs therein.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. (iii) As of the Amendment Closing Date Effective Date, Sanofi is not actively conducting any research or development program directed to the identification of NaP2b Products.
(iv) Sanofi shall not knowingly engage in any activities that use the inventions covered or claimed in the Listed Patents in a manner that is outside the scope of the license rights expressly granted to it hereunder.
(v) Sanofi has determined in good faith that no filing is required under the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as defined below)amended, no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability execution of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderthis Agreement.
Appears in 3 contracts
Samples: License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.)
Representations, Warranties and Covenants. The Borrower hereby Xenogen Cranbury and ----------------------------------------- Pfizer each represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatas follows:
A. 9.1.1 It is a corporation duly organized, validly existing and is in good standing under the laws of the States of Ohio and Delaware, respectively, is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification; and it has all requisite power and authority, corporate or otherwise, to conduct its business as now being conducted, to own, lease and operate its properties and to execute, deliver and perform this Agreement.
9.1.2 The execution execution, delivery and delivery performance by it of this Amendment and the Loan Documents to which any Loan Party is a party Agreement have been duly authorized by all requisite necessary corporate action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement do not and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent will not (a) such representations and warranties are made with reference to an earlier daterequire any consent or approval of its stockholders beyond the approvals already obtained, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior violate any provision of any law, rule, regulations, order, writ, judgement, injunction, decree, determination or award presently in effect having applicability to the date hereof it or any provision of its certificate of incorporation or by-laws or (c) result in a breach of or constitute a default under any material agreement, mortgage, lease, license, permit or other instrument or obligation to which were expressly permitted under the Loan Documents, as applicableit is a party or by which it or its properties may be bound or affected.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit 9.1.3 This Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the is a legal, valid and binding obligation of each Loan Party signatory thereto, it enforceable against it in accordance with its respective termsterms and conditions, except as the enforcement such enforceability may be subject to limited by applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or similar laws, from time to time in effect, affecting creditor's rights generally.
9.1.4 It is not under, and similar laws affecting will not enter into, any obligation to any person, or entity, contractual or otherwise, that is conflicting or inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations.
9.1.5 It has the right, power and title to enter into this Agreement and grant the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderlicenses and/or sublicenses granted herein.
Appears in 3 contracts
Samples: Collaborative Research Agreement (Xenogen Corp), Collaborative Research Agreement (Xenogen Corp), Collaborative Research Agreement (Xenogen Corp)
Representations, Warranties and Covenants. The Borrower 14.1 Each party hereby represents and warrants torepresents, warrants, and covenants to the other party as of the Effective Date as follows:
i) such party (i) has the power and agrees with, the Administrative Agent authority and the Lenders that:
A. The legal right to enter into this Agreement and perform its obligations hereunder, and (ii) has taken all necessary action on its part required to authorize the execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true performance of its obligations hereunder. This Agreement has been duly executed and correct in all material respects delivered on and as of the date of this Amendment as though made at and as behalf of such date, except to the extent (a) such representations party and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and valid, binding obligation of each Loan Party signatory thereto, such party and is enforceable against it in accordance with its respective terms;
ii) such party is not aware of any pending or threatened litigation (and has not received any communication) that alleges that such party’s activities related to this Agreement have violated, except or that by conducting the activities as the enforcement may be subject to bankruptcycontemplated herein such party would violate, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or intellectual property rights of any other equitable remedy Person;
iii) all necessary consents, approvals and authorizations of all governmental authorities and other Persons or relief entities required to enforce be obtained by such party in connection with this Agreement have been obtained; and
14.2 TGC hereby represents, warrants, and covenants to AMT as of the Effective Date that TGC is the exclusive licensee of the Licensed Patent Rights. During the term of this Agreement, TGC shall use its best efforts not to encumber or diminish the rights granted to AMT hereunder, including, without limitation, by not committing any right thereunderacts or permitting the occurrence of any omissions that would cause the breach or termination of the UPenn Agreement. TGC shall promptly provide AMT with notice of any alleged breach or termination of the UPenn Agreement. As of the date hereof, TGC is not in breach of the UPenn Agreement, and it is in full force and effect.
Appears in 3 contracts
Samples: License Agreement (uniQure B.V.), License Agreement (uniQure B.V.), License Agreement (Targeted Genetics Corp /Wa/)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any “Nonpublic Personal Information”, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Gxxxx-Xxxxx-Xxxxxx Act (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act of 1970 (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self-regulatory organizations, including Rule 3011 of the remedy National Association of specific performance Securities Dealers, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 3 contracts
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds)
Representations, Warranties and Covenants. The Borrower (a) Each of the Parties hereby represents and warrants toto the other Party that:
(i) this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms. The execution, delivery, and covenants and agrees performance of the Agreement by such Party does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a Party or by which it is bound, nor violate any law or regulation of any court, Governmental Body, or administrative or other agency having jurisdiction over it;
(ii) it is not aware of any government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Applicable Laws, currently in effect, necessary for, or in connection with, the Administrative Agent transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, or for the performance by it of its obligations under this Agreement and such other agreements (save for Regulatory Approvals, INDs and similar regulatory authorizations necessary for the Lenders Development or Commercialization of the Licensed Compounds and Licensed Products as contemplated hereunder);
(iii) such Party has not, and during the Term will not, grant any right to any Third Party relating to its respective Patents and Know How which would conflict with the rights granted to the other Party hereunder; and
(iv) such Party will at all times and in all material respects comply with all Applicable Laws relating to its activities under this Agreement.
(b) Ardelyx represents, warrants and covenants as of the Effective Date (or as of such other /additional time as may be explicitly specified below) to AstraZeneca that:
A. The execution (i) Ardelyx is the sole and delivery exclusive owner of the entire right, title and interest in (a) the Listed Patents existing as of the Effective Date and (b) the Licensed Know-How existing as of the Effective Date. Ardelyx has all rights necessary to grant the licenses under the Licensed Technology existing as of the Effective Date that it grants to AstraZeneca in this Amendment Agreement. Neither the Listed Patents nor the Licensed Know-How is subject to any encumbrance, lien or claim of ownership by any Third Party. True, complete and correct copies of the Loan Documents to which any Loan Party is a party complete file wrapper and other correspondence with patent authorities received or sent by or on behalf of Ardelyx in the course of prosecuting the Listed Patents have been duly authorized provided to AstraZeneca prior to the Effective Date. For the duration of the Term, Ardelyx shall not encumber the rights granted to AstraZeneca hereunder with respect to the Licensed Technology, Joint Technology or Ardelyx [***] Technology. AstraZeneca shall have no obligation to contribute to any remuneration of any inventor employed or previously employed by Ardelyx or any of its Affiliates in respect of the Licensed Patents, Licensed Know-How, Licensed Compounds [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. or Licensed Products. Ardelyx has paid and will pay all requisite action such remuneration due to such inventors with respect to the Licensed Patents, Licensed Know-How, Licensed Compounds and Licensed Products either existing as of the Effective Date or arising in the course of Ardelyx’s activities under this Agreement, and Ardelyx has not received any notification that such payments are deemed by any Person to be insufficient compensation.
(ii) To Ardelyx’s Knowledge, the Listed Patents existing as of the Effective Date are being diligently prosecuted before the respective patent authorities in accordance with Applicable Law. All applicable fees due to patent authorities with respect to the filing and prosecution of the Listed Patents existing as of the Effective Date have been paid on or before the part due date for payment (as such due date may be extended in accordance with Applicable Laws or patent authority rules and regulations).
(iii) As of such Loan the Effective Date, to Ardelyx’s Knowledge, there is no actual or threatened infringement or misappropriation of the Licensed Patents or Licensed Know-How by any Person.
(iv) To Ardelyx’s Knowledge, the manufacture, use, sale, offer for sale or import of the Licensed Compounds or Licensed Products as they exist as of the Effective Date in the Field will not infringe or misappropriate the Patents, other IPR or proprietary right of any Third Party.
B. The representations and warranties (v) Ardelyx has not received any written notice alleging that the Listed Patents existing as of the Loan Effective Date, if issued, would be invalid or unenforceable or that the Patent applications included in such Listed Patents will not proceed to grant. The conception, development and reduction to practice of the Listed Patents and Licensed Know-How existing as of the Effective Date have not constituted or involved the misappropriation of trade secrets or other proprietary rights of any Person. There have been no Third Party claims, judgments or settlements against Ardelyx or any of its Affiliates as a result of legal actions brought by Third Parties contained relating to the Regulatory Documentation, Listed Patents or Licensed Know-How, or amounts owed by Ardelyx or its Affiliates with respect to any such claims, judgments or settlements. No claim or litigation has been brought or threatened by any Person alleging that (a) the Listed Patents existing as of the Effective Date, if issued, are or will be invalid or unenforceable, or that the Licensed Know-How existing as of the Effective Date is or will be invalid or unenforceable or (b) the Exploitation of the Licensed Compounds or Licensed Products or the filing of the Regulatory Documentation violates, infringes or otherwise conflicts or interferes with any IPR or proprietary right of any Person.
(vi) Ardelyx has not previously entered into any agreement, whether written or oral, with respect to, or otherwise assigned, transferred, licensed, conveyed or otherwise encumbered its right, title or interest in or to, the Listed Patents, Licensed Know-How, Regulatory Documentation, the Licensed Compounds or the Licensed Products, in each case existing as of the Effective Date (including by granting any covenant not to xxx with respect thereto) and Ardelyx will not at any time during the Term enter into any such agreements or grant any such right, title or interest to any Person, in each case, that is inconsistent with the rights and licenses granted to AstraZeneca under this Agreement.
(vii) To the Knowledge of Ardelyx’s management personnel responsible for patent matters, in respect of the pending United States patent applications included in the Credit Agreement Listed Patents, Ardelyx has submitted all material prior art of which it is aware in accordance with the requirements of the United States Patent and Trademark Office.
(viii) The Listed Patents set forth in Exhibit B represent all Patents within Ardelyx’s Control that cover or claim any invention necessary or useful for the Exploitation of Licensed Compounds or Licensed Products as of the Effective Date.
(ix) To its Knowledge, Ardelyx has properly identified each and every inventor of the claims of the Listed Patents existing as of the Effective Date, recognizing that as the prosecution of such Listed Patents proceeds, such claims and such inventors may need to be adjusted, as determined in accordance with the laws of the jurisdiction in which such Licensed Patent is issued or such application is pending.
(x) Each Person who has contributed to the conception of inventions covered or claimed in the Listed Patents existing as of the Effective Date, or the creation of the Licensed Know-How has duly assigned and has executed an agreement assigning to Ardelyx such Person’s entire right, title and interest in and to such Listed Patents or Licensed Know-How. To Ardelyx’s Knowledge, no current or former officer, employee, agent or consultant of Ardelyx is in violation of any term of any assignment or other Loan Documents equivalent agreement regarding or relevant to the ownership or protection of such Listed Patents or Licensed Know-How.
(xi) The trade secrets and all other material, previously non-published, information (including the chemical structures of all compounds Exemplified in the Listed Patents) included in the Licensed Know-How existing as of the Effective Date have been kept confidential or have been disclosed to Third Parties only under terms of confidentiality. To the Knowledge of Ardelyx no breach of such confidentiality obligation has been committed by any Third Party.
(xii) Ardelyx has made available to AstraZeneca all Regulatory Documentation, Licensed Know-How and other Information in its possession or Control as of the Effective Date regarding or related to any Licensed Compound or Licensed Product that AstraZeneca has requested in writing Ardelyx to make available, and such items are true true, complete and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to respects. To the extent (a) Ardelyx is or becomes obligated to provide to AstraZeneca pursuant to this Agreement any Regulatory Documentation, Licensed Know-How and other Information in its Control after the Effective Date, Ardelyx will use reasonable efforts to provide such representations and warranties are made with reference to an earlier dateitems in a form that will be true, in which case each such representation and warranty shall be true complete and correct in all material respects respects. As of the Effective Date, Ardelyx has prepared, maintained and retained all Regulatory Documentation that Ardelyx is required to maintain or report pursuant to and in accordance with GLP, GCP, regulations and other Applicable Laws and Ardelyx has performed such activities in accordance with such Applicable Laws in all material respects.
(xiii) Ardelyx has not been debarred by the FDA, is not subject to any similar sanction of other Regulatory Health Authorities in the Territory, and is not subject to any such debarment or similar sanction by any such Regulatory Health Authority, and Ardelyx has not used, and will not engage, in any capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a). Ardelyx shall inform AstraZeneca in writing immediately if it or any Person engaged by Ardelyx who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a) or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Ardelyx’s Knowledge, is threatened, relating to the debarment or conviction of Ardelyx or any such Person performing services hereunder.
(xiv) The information provided by Ardelyx to AstraZeneca (for the purposes of AstraZeneca’s assessment as to whether or not filing is required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, with respect to this Agreement or the transactions contemplated herein) regarding Ardelyx’s and its Affiliates’ corporate structure and financial status is, in all material respects, correct, complete and not misleading.
(c) AstraZeneca represents, warrants and covenants as of the Effective Date (or as of such date only other /additional time as may be explicitly specified below) to Ardelyx that:
(i) AstraZeneca has not been debarred by the FDA (and is not subject to any similar sanction of other Regulatory Health Authorities in the Territory), and is not subject to any such debarment or similar sanction by any such Regulatory Health Authority, and AstraZeneca has not used, and will not engage, in any capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (b) inaccuracies resulting from transactions prior 21 U.S.C. §335a). AstraZeneca shall inform Ardelyx in writing immediately if it or any Person engaged by AstraZeneca who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a), or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to AstraZeneca’s knowledge, is threatened, relating to the date hereof which were expressly permitted under the Loan Documents, as applicabledebarment or conviction of AstraZeneca or any such Person performing services hereunder.
C. Both before (ii) All employees of AstraZeneca or its Affiliates performing activities under this Agreement shall be under an obligation to assign all right, title and after giving effect interest in and to this Amendmenttheir inventions, no Default Information and discoveries, whether or Event of Default not patentable, and IPRs therein, to AstraZeneca or its Affiliate(s) as the sole owner thereof. Ardelyx shall have occurred no obligation to contribute to any remuneration of any inventor employed or previously employed by AstraZeneca or any of its Affiliates in respect of any such inventions, Information and be continuingdiscoveries and IPRs therein that are so assigned to AstraZeneca or its Affiliate(s). AstraZeneca will pay all such remuneration due to such inventors with respect to such inventions, Information and discoveries and IPRs therein.
D. (iii) As of the Amendment Closing Date Effective Date, AstraZeneca is not actively conducting any research or development program directed to the identification of NHE3 Products.
(iv) AstraZeneca shall not knowingly engage in any activities that use the inventions covered or claimed in the Licensed Patents or any Licensed Know-How in a manner that is outside the scope of the license rights expressly granted to it hereunder.
(v) AstraZeneca has determined in good faith that no filing is required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or amended with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit to this Agreement or any of the other Loan Documentstransactions contemplated herein, it being understood that AstraZeneca in making such determination has relied on the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documentinformation provided by Ardelyx regarding Ardelyx’s and its Affiliates’ corporate structure and financial status.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 3 contracts
Samples: License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any “Nonpublic Personal Information”, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act of 1970 (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self-regulatory organizations, including Rule 3011 of the remedy National Association of specific performance Securities Dealers, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 3 contracts
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds)
Representations, Warranties and Covenants. The Borrower Debtor hereby represents and warrants to, and covenants and agrees with, Secured Party, as follows:
(a) Except for liens in favor of Secured Party or as otherwise permitted by the Administrative Agent Loan Agreement, Debtor is or will be the owner of all the Personal Property Collateral free from any lien, security interest or encumbrance and Debtor will defend the Personal Property Collateral against any and all claims and demands of all persons, other than Secured Party, at any time claiming the same or any interest therein;
(b) The Debtor has the authority to enter into this Security Agreement and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have person signing on Debtor’s behalf has been duly authorized to execute this Security Agreement;
(c) Debtor’s state issued organizational identification number is set forth on Schedule 2(c). The exact legal name of Debtor is as set forth on Schedule 2(c). Except as provided for Schedule 2(c), Debtor currently does not conduct, nor has it in the last five years conducted, business under any other name or trade name;
(d) No less than 30 days prior to the effective date thereof, Debtor will notify Secured Party in writing of any change in Debtor’s name, type of organization, organizational identification number, or jurisdiction of organization or the use of any assumed name by Debtor. Debtor shall, as a condition to making effective any of the foregoing, execute and deliver to Secured Party any and all requisite action financing statements and other documents requested by Secured Party in connection with any of the foregoing and as a condition to making effective any of the foregoing.
(e) Except for any existing lien in favor of Secured Party, no other financing statement covering any of the Personal Property Collateral is on file in any public office;
(f) Except as set forth in Schedule 2(f), no Personal Property Collateral is now, nor shall any Personal Property Collateral at any time or times hereafter be stored with a bailee, warehouseman or similar party without Secured Party’s prior written consent, and in such event, Debtor will concurrently therewith, upon the part demand of Secured Party cause the warehouseman, bailee or similar party within 15 business days of the date thereof, to acknowledge in writing Secured Party’s security interest and to cause its records to reflect such Loan security interest in form and substance reasonably satisfactory to Secured Party, and to cause such bailee, warehouseman or similar party to issue and deliver non-negotiable warehouse receipts or non-negotiable bills of lading in Debtor’s name in form and substance reasonably satisfactory to Secured Party.
B. The representations (g) Debtor will at all times keep accurate and warranties complete records of the Loan Parties contained Personal Property Collateral; and
(h) Debtor will promptly inform Secured Party of any default in the Credit Agreement and the payment or performance by Debtor or other Loan Documents are true and correct persons or of claims made by any other person in all material respects on and as of the date of this Amendment as though made at and as of such date, except regard to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.Personal Property Collateral
Appears in 2 contracts
Samples: Security Agreement (Electric City Corp), Security Agreement (Electric City Corp)
Representations, Warranties and Covenants. The Borrower Except as otherwise disclosed in the Disclosure Schedules for each party attached hereto as Schedule 12.1 (each, the “Disclosure Schedule”), each party hereby represents represents, warrants and warrants tocovenants to the other party as of the Effective Date as follows:
(a) Such party (i) has the power and authority and the legal right to enter into this Agreement and perform its obligations hereunder, and covenants and agrees with, (ii) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true performance of its obligations hereunder. This Agreement has been duly executed and correct in all material respects delivered on and as of the date of this Amendment as though made at and as behalf of such date, except to the extent (a) such representations party and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan Party signatory thereto, such party and is enforceable against it in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity.
(b) Such party is not aware of any pending or threatened litigation (and has not received any communication) that alleges that such party’s activities related to this Agreement have violated, or that by conducting the activities as contemplated herein such party would violate, any of the intellectual property rights of any Third Party.
(c) All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such party in equityconnection with the execution and delivery of this Agreement and the performance of its obligations hereunder have been obtained.
(d) The execution and delivery of this Agreement and the performance of such party’s obligations hereunder (i) do not conflict with or violate any requirement of applicable law or regulation or any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such party, as applicable, in any material way, and subject to the availability of the remedy of specific performance (ii) do not conflict with, violate, or of breach or constitute a default or require any other equitable remedy consent under, any contractual obligation or relief to enforce court or administrative order by which such party is bound, in any right thereundermaterial way.
Appears in 2 contracts
Samples: Non Exclusive Patent License (Cutera Inc), Non Exclusive Patent License (Cynosure Inc)
Representations, Warranties and Covenants. The Borrower (a) Each Party hereby represents and warrants to, that (i) it has the power and covenants authority to enter into this Agreement and agrees with, perform its obligations hereunder; (ii) the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party Agreement have been duly authorized by and all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit necessary actions have been taken to make this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it in accordance with its respective terms, except as ; and (iii) the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium execution and similar laws affecting delivery of this Agreement and the rights and remedies performance by such Party of creditors generally its obligations hereunder will not contravene or the application of principles of equity, whether result in any action at law or proceeding in equity, and subject to the availability breach of the remedy Certificate of specific performance Incorporation, Bylaws or any other organizational document of such Party or of any agreement, contract, indenture, license, instrument or understanding or, to the result in any violation of any law, rule, regulation, statute, order or decree to which such Party is bound or by which they or any of their property is subject.
(b) State Street represents and warrants that it owns and/or has the right to license to WGT the SPDR Xxxx in the United States and that to its actual knowledge, the SPDR Xxxx and WGT’s use of the foregoing in accordance with this Agreement shall not infringe any copyright, trademark, trade secret or other equitable remedy intellectual property right of any third party.
(c) WGT agrees expressly to be bound by and furthermore to include the following disclaimers and limitations in its Informational Materials and upon request to furnish a copy (copies) thereof to S&P and State Street:
(i) For Category 1 Informational Materials and contracts: The “SPDR” trademark is used under license from The XxXxxx-Xxxx Companies, Inc. and the SPDR® Gold Trust is permitted to use the “SPDR” trademark pursuant to a sublicense from the Marketing Agent. No financial product offered by SPDR® Gold Trust, or relief its affiliates is sponsored, endorsed, sold or promoted by The XxXxxx-Xxxx Companies, Inc. (“XxXxxx-Xxxx”). XxXxxx-Xxxx makes no representation or warranty, express or implied, to enforce the owners of any right thereunderfinancial product or any member of the public regarding the advisability of investing in securities generally or in financial products particularly or the ability of the index on which financial products are based to track general stock market performance. XxXxxx-Xxxx is not responsible for and has not participated in any determination or calculation made with respect to issuance or redemption of financial products. XxXxxx-Xxxx has no obligation or liability in connection with the administration, marketing or trading of financial products. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL XxXXXX-XXXX HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) For Category 2 Informational Materials: The “SPDR” trademark is used under license from The XxXxxx-Xxxx Companies, Inc. (“XxXxxx-Xxxx”). No financial product offered by SPDR® Gold Trust, or its affiliates is sponsored, endorsed, sold or promoted by XxXxxx-Xxxx. Any changes in the foregoing disclaimers and limitations must be approved in advance in writing by an authorized officer of S&P and State Street. The Category 2 Informational Materials shall also include along with the foregoing disclaimers a clear reference that further limitations and important information that could affect investors’ rights are to be found in the prospectus for the applicable Shares.
(d) WGT represents and warrants to S&P and State Street that the Shares and all activities of WGT concerning the Shares shall not violate any applicable law, including, but not limited to, U.S. and foreign banking, commodities and securities laws.
(e) EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING, STATE STREET DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF STATE STREET TO WGT AND ITS AFFILIATES UNDER OR RELATING TO THIS AGREEMENT AT ANY TIME EXCEED THE AGGREGATE AMOUNT OF THE FEES RECEIVED BY STATE STREET PURSUANT TO THIS AGREEMENT AND THE TRUST AGREEMENT PRIOR TO SUCH TIME EXCEPT THAT THIS LIMITATION SHALL NOT BE APPLICABLE TO A CLAIM BY WGT FOR INDEMNIFICATION PURSUANT TO SECTION 8.
Appears in 2 contracts
Samples: Sublicense Agreement (SPDR Gold Trust), Sublicense Agreement (streetTRACKS GOLD TRUST)
Representations, Warranties and Covenants. The Borrower hereby (a) Each of the Parties, severally and not jointly, represents and warrants toto each other Party that the following statements are true, correct, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and complete as of the date of this Amendment as though made at and as of hereof (or, if later, the date that such dateParty first became or becomes a Party) but, except solely with respect to the extent Company, subject to any limitations or approvals arising from, or required by, the commencement of the Chapter 11 Cases:
(ai) such representations it is validly existing and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted good standing under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As laws of the Amendment Closing Date (as defined below), no Loan Party has any groundsjurisdiction of its organization, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit this Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the is a legal, valid valid, and binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to limited by bankruptcy, insolvency, reorganization, moratorium and moratorium, or other similar laws affecting the relating to or limiting creditors’ rights and remedies of creditors generally or by equitable principles relating to enforceability;
(ii) except as expressly provided in this Agreement or as may be required for disclosure by the application of principles of equitySecurities and Exchange Commission, whether in no material consent or approval of, or any action at law registration or proceeding in equityfiling with, any other Person is required for it to carry out the Restructuring contemplated by, and subject perform its obligations under, this Agreement;
(iii) except as expressly provided in this Agreement, it has all requisite organizational power and authority to enter into this Agreement and to carry out the availability Restructuring contemplated by, and perform its obligations under, this Agreement;
(iv) the execution and delivery by it of this Agreement, and the performance of its obligations hereunder, have been duly authorized by all necessary organizational action on its part;
(v) it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement;
(vi) the execution, delivery, and performance by such Party of this Agreement does not and will not (A) violate any provision of law, rule, or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, (B) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any material debt for borrowed money to which it or any of its subsidiaries is a party; except, in the case of this clause (B), for any such conflict, breach or default as would not reasonably be expected to result in a material adverse effect on the ability of such Party to consummate the Restructuring in a timely manner or for such Party to perform any of its material obligations under this Agreement, or (C) violate any order, writ, injunction, decree, statute, rule, or regulation; and
(vii) it has not entered into a definitive written agreement with respect to an Alternative Proposal as of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderdate first written above.
Appears in 2 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement
Representations, Warranties and Covenants. The Borrower Debtor hereby represents represents, warrants and warrants covenants as follows:
(a) Debtor is a corporation duly incorporated under the laws of the State of Delaware. Debtor's U.S. tax identification number and its organizational identification number assigned by the State of Delaware, if any, are set forth below its signature hereto. Debtor will not change its form or jurisdiction of organization without giving at least 15 days' prior written notice thereof to Secured Party and taking, at Debtor's sole expense, all actions requested by Secured Party to maintain and preserve Secured Party's security interest in the Collateral as a valid, enforceable, perfected, first priority security interest, including, but not limited to, filing financing statements specified by Secured Party.
(b) Debtor has full power and covenants authority to enter into this Agreement, grant to the Secured Party a valid security interest in the Collateral and agrees perform all of its obligations under this Agreement. The execution, delivery and performance by Debtor of this Agreement do not contravene Debtor's constating documents, or violate any provision of any statute, law, rule, regulation, judgment, order or decree and will not conflict with, or constitute a breach or default under, any indenture, loan agreement, contract or other agreement or instrument to which Debtor is a party or by which Debtor or any of its property is bound.
(c) No authorization, consent or approval or other action by, and no notice to or other filing with, any governmental authority or regulatory body is required for the Administrative Agent and grant by Debtor of the Lenders that:
A. The security interest granted hereby, the due execution and delivery by Debtor of this Amendment and Agreement or the Loan Documents to which performance by Debtor of any Loan Party is of its obligations hereunder, except filing of a party have financing statement in the office of the Secretary of State of the State of Delaware.
(d) This Agreement has been duly authorized executed and delivered by all requisite action on the part of such Loan Party.
B. The representations Debtor and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the is Debtor's legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it Debtor in accordance with its respective terms, except as the enforcement may be subject only to bankruptcy, insolvency, reorganization, moratorium and or similar laws now or hereafter in effect relating to or affecting the enforceability of rights and remedies of creditors generally or and to general equitable principles that may limit the application right to obtain equitable remedies. This Agreement creates in Secured Party's favor a valid and, upon the filing of principles an appropriate financing statement in the office of equitythe Secretary of State of the State of Delaware, whether in any action at law or proceeding in equity, and subject perfected (to the availability extent perfection is obtained by the filing of such financing statement) lien on and security interest in the remedy of specific performance Collateral, enforceable against Debtor and all third parties and superior in right to all other existing security interests, liens, encumbrances or charges, existing or future. Upon such filing, no filing or recording of any other equitable remedy financing statement or relief other instrument and no recording, filing or indexing of this Agreement is necessary in order to enforce preserve and protect Secured Party's security interest in the Collateral as a legal, valid and enforceable, perfected (to such extent) security interest in the Collateral, except filing of appropriate continuation statements with respect to financing statements.
(e) Except for the security interest granted hereby, Debtor is, and as to any right thereunderCollateral acquired by Debtor after the date hereof will be, the owner and holder of all the Collateral free and clear of any security interest, lien, charge, encumbrance or other adverse claim, and Debtor will defend all of the Collateral, whether now owned or hereafter acquired, against all claims and demands of all persons at any time claiming the same or any interest therein, and will take all steps to maintain the security interest of the Secured Party as a valid and fully perfected lien of first priority.
(f) Debtor's principal place of business and chief executive office is at the address set forth below Debtor's signature below. The Debtor has never changed its name nor has it been the surviving entity in a merger or acquired the assets of any other business prior to the date hereof. Debtor has not utilized any trade names in the conduct of its business. Debtor will not change its name or the location of its principal place of business or chief executive office without giving at least fifteen (15) days' prior written notice to the Secured Party of any such proposed change or utilization and taking, at Debtor's sole expense, all actions requested by Secured Party to maintain and preserve Secured Party's security interest in the Collateral as a valid, enforceable, perfected, first priority security interest including, but not limited to, filing financing statements specified by Secured Party.
(g) No financing statement covering any of the Collateral or any proceeds thereof is on file in any public office in any jurisdiction, other than financing statements in favor of the Secured Party. Debtor authorizes the Secured Party to prepare and file financing statements without the signature of the Debtor where permitted by law and, if Debtor's signature shall be required, Debtor irrevocably appoints the Secured Party as Debtor's agent for the purpose of signing and filing such financing statements. Debtor further authorizes description of the Collateral on financing statements and other public filings using generic terms such as "all assets" and "all personal property". Debtor promises to pay to the Secured Party all fees and expenses incurred in filing financing statements and any continuation statements or amendments thereto, which fees and expenses shall become a part of the Obligations secured by this Agreement. A carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement and may be filed by the Secured Party in accordance with the provisions of this Section.
(h) On the request of the Secured Party from time to time, Debtor shall duly endorse and deliver to the Secured Party all instruments or documents, the possession of which is necessary to perfect the Secured Party's interest in any of the Collateral hereunder and take, at Debtor's sole expense, all actions requested by Secured Party to maintain and preserve Secured Party's security interest in the Collateral as a valid, enforceable, perfected, first priority security interest.
(i) Except for sales of inventory and expenditures made in the ordinary course of Debtor's business prior to an Event of Default hereunder, Debtor will not sell, assign or offer to sell or assign or otherwise transfer the Collateral, either in whole or in part, or any interest therein without the prior written consent of the Secured Party. Debtor will not, without the prior written consent of the Secured Party, create or permit to exist any security interest, lien, charge, encumbrance or other adverse claim on any of the Collateral, other than the security interest in favour of the Secured Party created by this Agreement.
(j) Debtor will fully and punctually perform any duty required of it in connection with the Collateral and will not take any action, including the amendment of any contract or the waiver of any contract rights, which will impair, damage or destroy Secured Party's rights with respect to the Collateral or hereunder or the value thereof.
Appears in 2 contracts
Samples: Security Agreement (Consolidated Envirowaste Industries Inc), Security Agreement (Consolidated Envirowaste Industries Inc)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any “Nonpublic Personal Information”, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Gxxxx-Xxxxx-Xxxxxx Act (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act of 1970 (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self regulatory organizations, including Rule 3011 of the remedy National Association of specific performance Securities Dealers, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 2 contracts
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds)
Representations, Warranties and Covenants. The Borrower hereby 13.1 Each Party represents and warrants to, and covenants and agrees with, to the Administrative Agent and the Lenders other Parties that:
A. The (a) such Party has the full power and authority to enter into this Agreement and to carry out the provisions hereof;
(b) such Party has taken all necessary action on its part to authorize the execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true performance of its obligations hereunder;
(c) this Agreement has been duly executed and correct in all material respects delivered on and as of the date of this Amendment as though made at and as behalf of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsParty, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and valid, binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with the terms hereof;
(d) the execution, delivery and performance of this Agreement by such Party does not conflict in a material manner with any agreement or any provision thereof, or any instrument or written understanding to which it is a party or by which it is bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over such Party;
(e) no government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any applicable laws, rules or regulations currently in effect, is or will be necessary for the execution of this Agreement; and
(f) in respect of the subject-matter of this Agreement, it will not employ any individual or entity debarred by the FDA (or subject to a similar sanction of any equivalent Competent Authority outside the United States of America) or, to its respective termsknowledge, except that is the subject of any FDA debarment investigation or proceeding (or similar proceeding of any equivalent Competent Authority outside the United States of America), it being understood that details of the subjects of FDA debarment investigations are not published and a Party would not make any particular enquiries of relevant individuals outside such Party’s standard policies and procedures.
13.2 Except as otherwise expressly set forth in this Agreement, NO PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THEIR EXERCISE OF ANY INTELLECTUAL PROPERTY RIGHT UNDER THIS AGREEMENT DOES NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13.3 No claim for breach of any of the enforcement representations or warranties in Clause 13.1 may be subject to bankruptcybrought against CRT, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally ICR or the application Company, as applicable, after [***] has elapsed from the Services Expiry Date, after which date CRT, the ICR and the Company shall each be fully and completely discharged from any liability for breach of principles any of equity, whether the representations or warranties in any action at law or proceeding in equityClause 13.1.
13.4 The Company’s aggregate liability, and subject to CRT’s and the availability ICR’s combined aggregate liability, for breach of one or more of the remedy representations or warranties in Clause 13.1 and clause 6 of specific performance or of any other equitable remedy or relief the License Agreement shall be limited to enforce any right thereunder[***], provided that CRT’s and the ICR’s liability shall be several and not joint.
Appears in 2 contracts
Samples: Collaboration and Option Agreement (Monte Rosa Therapeutics, Inc.), Collaboration and Option Agreement (Monte Rosa Therapeutics, Inc.)
Representations, Warranties and Covenants. The Borrower hereby represents Trust, on its own behalf and warrants toon behalf of the Fund, and the Sponsor each hereby represents, warrants and covenants each of the following:
2.1 This Agreement has been, and agrees withat the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Trust, on its own behalf and on behalf of the Fund, and the Sponsor. This Agreement (including without limitation, the Administrative Agent and grant of a security interest under Section 7.6 below) does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Lenders that:
A. The execution and delivery of this Amendment and Fund’s prospectus or other organic document, agreement, judgment, order or decree applicable to the Loan Documents Fund to which any Loan Party the Trust or the Sponsor is a party have been duly authorized or by all requisite action on which the part of such Loan PartyFund or its Investments are bound.
B. The representations and warranties 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the Loan Parties contained in United States of America, the Credit Agreement Trust and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except Sponsor shall be deemed to have confirmed to the extent Custodian that the Fund has (a) such representations and warranties are made with reference all determinations required to an earlier datebe made by the Fund under Applicable Law, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the date hereof which were expressly permitted under custody and settlement infrastructure or the Loan Documents, as applicableservicing of securities in such jurisdiction.
C. Both before 2.3 The Trust and after giving effect the Sponsor shall safeguard and shall be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides them. In furtherance and not limitation of the foregoing, in the event the Trust and/or the Sponsor utilizes any on-line service offered by the Custodian, the Trust, the Sponsor and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Trust and/or the Sponsor uses any on-line or similar communications service made available by the Custodian, the Trust and the Sponsor shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Trust and/or the Sponsor relating to the services described in this AmendmentAgreement, no Default or Event of Default shall have occurred the Trust and/or the Sponsor will only use the software for the purposes for which the Custodian provided the software to the Trust and/or the Sponsor, and be continuingwill abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Trust and the Sponsor.
D. As 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution of trades), the Trust, on its own behalf and on behalf of the Amendment Closing Date (as defined below), no Loan Party has any groundsFund, and the Sponsor hereby agrees not (i) authorize BBH&Co. to challenge (complete such documentation as may be required or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions appropriate for the execution of the Administrative Agent or any LenderInstruction, and agree to be contractually bound to the effectivenessterms of such documentation “as is” (subject to Section 9 of this Agreement) without recourse against BBH&Co.; (ii) represent, genuinenesswarrant and covenant that the Trust, validity, collectibility or enforceability on its own behalf and on behalf of the Credit Agreement or any of Fund, and the other Loan DocumentsSponsor have accepted and agreed to comply with all Applicable Law, terms and conditions to which the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement Fund’s Investment may be subject to bankruptcybound, insolvencyincluding without limitation, reorganization, moratorium and similar laws affecting requirements imposed by the rights and remedies of creditors generally Investment prospectus or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.offering
Appears in 2 contracts
Samples: Custodian Agreement (United States Currency Funds Trust), Custodian Agreement (United States Commodity Funds Trust I)
Representations, Warranties and Covenants. (a) The Borrower hereby represents and warrants to, that this Agreement and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement as amended hereby constitute legal, valid and the other Loan Documents are true and correct in all material respects on and as binding obligations of the date of this Amendment as though made at and as of such date, except to Borrower enforceable against the extent (a) such representations and warranties are made Borrower in accordance with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and its terms.
(b) inaccuracies resulting from transactions prior The Borrower hereby represents and warrants that its execution, delivery and performance of this Agreement has been duly authorized, does not violate any provision of its limited liability company agreement, will not violate any law, regulation, court order or writ applicable to it, and will not require the date hereof which were expressly permitted approval or consent of any governmental agency, or of any other third party under the Loan Documents, as applicableterms of any contract or agreement to which it is bound.
C. Both before (c) The Borrower hereby represents and after warrants that, upon giving effect to the provisions of this AmendmentAgreement, (i) no Default or Event of Default shall have occurred and be continuing.
D. As occurred, (ii) all of the Amendment Closing Date (as defined below), no Loan Party has any grounds, representations and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions warranties of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of Borrower contained in the Credit Agreement or any of the and each other Loan DocumentsDocument to which it is a party (other than representations and warranties which, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective their express terms, except are made only as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityan earlier specified date) are, and subject will be, true and correct as of the date of the Borrower’s execution and delivery hereof or thereof in all material respects as though made on and as of such date, and (iii) each of the schedules attached to the availability Security Agreement is true and correct as of the remedy date hereof, and all supplements to such schedules have been delivered in accordance with the terms of specific performance or of any other equitable remedy or relief the Security Agreement.
(d) The Borrower hereby agrees to enforce any right thereunderpay the Amendment Fee to the Lender upon the Borrower’s execution and delivery hereof.
Appears in 2 contracts
Samples: Credit Agreement (Heritage-Crystal Clean, Inc.), Credit Agreement (Heritage-Crystal Clean, Inc.)
Representations, Warranties and Covenants. The Borrower hereby 14.1 Each Party represents, warrants and acknowledges that the other Party is relying upon the following representations, warranties and covenants in connection with its execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereunder:
(a) Each Party represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. (i) the Party has all necessary power, authority and capacity to enter into this Agreement and to perform its obligations under this Agreement. The execution execution, delivery and delivery performance of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement has been duly authorized by all requisite necessary action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in Party. This Agreement has been duly and validly executed by the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsParty, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, a valid and binding obligation of each Loan the Party signatory thereto, enforceable against it the Party in accordance with its respective terms, except as the enforcement such enforceability may be subject to limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization and similar laws affecting the rights and remedies of creditors generally or the application of and by general principles of equity, regardless of whether asserted in any action at law or a proceeding in equityequity or law.
(b) Licensor represents, warrants and covenants that:
(i) Licensor has all rights necessary to grant the License to Licensee in accordance with the provisions of this Agreement.
(ii) To the best of Licensor’s knowledge, the licensing and use of the Trademarks and Copyrights in accordance with the terms of this Agreement does not infringe or otherwise violate any intellectual property rights existing as of the date hereof in the Territory.
(c) Licensee represents, warrants and covenants that:
(i) Licensee has, and subject will throughout the term have, the capacity to Produce the availability Products bearing the Trademarks and Copyrights of the remedy of specific performance or of any other equitable remedy or relief quality contemplated by this Agreement.
(ii) Licensee has, and will throughout the term have, all licenses and permits necessary to enforce any right thereunderperform its obligations pursuant to this Agreement in the Territory.
Appears in 2 contracts
Samples: Trademark & Copyright License Agreement, Trademark & Copyright License Agreement
Representations, Warranties and Covenants. The (a) Borrower hereby represents and warrants to, and covenants and agrees with, Lender that: (i) Borrower has the Administrative Agent form of business organization indicated above; Borrower is duly organized in the jurisdiction of organization set forth above; and is existing, in good standing and qualified to do business wherever necessary to carry on its present business and operations and to own its property; (ii) each Agreement, when entered into has been duly executed and authorized, requires no further director, shareholder, member, partner or other third party approval of, or the Lenders that:
A. The execution giving of notice to, any governmental authority and delivery does not contravene any law, regulation or other governmental order, any certificate or articles of this Amendment and the Loan Documents incorporation or bylaws or partnership certificate or operating agreement, or any agreement, indenture, or other instrument to which any Loan Party Borrower is a party have been duly authorized or by all requisite action on the part of such Loan Party.
B. The representations which it may be bound and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid valid, and binding obligation of each Loan Party signatory thereto, Borrower enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium ; (iii) Borrower and similar laws affecting the rights and remedies of creditors generally any other person who owns a controlling interest or the application of principles of equity, whether otherwise controls Borrower in any action at manner is not listed on the Specially Designated Nationals and Blocked Persons Lists maintained by the Office of Foreign Assets Control (“OFAC”) or other similar lists maintained by the federal government pursuant to any federal law or proceeding regulation regarding a person designated under Executive Order No. 13224 or similar lists and Borrower is in equitycompliance with any applicable Bank Secrecy Act regulations and other federal regulations to prevent money laundering, and subject to the availability extent Borrower is located in or carries on business in any Province, Borrower and each director, officer, employee and agent thereof is in compliance, in all material respects, with all applicable Sanctions, Anti-Corruption Laws and AML Laws and Borrower is not, nor is any director, officer, employee or agent of Borrower (A) the remedy of specific performance or subject of any other equitable remedy Sanctions, or relief (B) located, organized or resident in a country or territory that is, or whose government is, the subject of any Sanction. For the purposes hereof, the following definitions are applicable to enforce any right thereunder.the provisions hereof:
Appears in 2 contracts
Samples: Master Equipment Finance Agreement (Iris Energy LTD), Master Equipment Finance Agreement (Iris Energy LTD)
Representations, Warranties and Covenants. The Borrower hereby represents and Company represents, warrants to, and covenants to NVPR as follows:
(a) Upon the completion of the deliveries, filings and agrees withother actions contemplated in Section 6 hereof, the Administrative Agent pledge, assignment and security interest granted to NVPR pursuant to this Agreement in and to the Lenders that:
A. The execution Collateral will constitute a perfected security interest therein, superior and delivery prior to the rights of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Partyother Persons therein.
B. (b) The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and Company is, as of the date hereof the sole, direct legal and beneficial owner of this Amendment as though made all Collateral pledged by it hereunder free from any lien or other right, title or interest of any Person, and the Company shall defend the Collateral pledged by it hereunder against all claims and demands of all Persons at any time claiming any interest therein adverse to NVPR. There is no agreement, and as the Company shall not enter into any agreement or take any other action, that would result in the imposition of such dateany other lien, restrict the transferability of any of the Collateral or otherwise impair or conflict with the Company’s obligations or the rights of NVPR hereunder except to the extent expressly permitted by the Option Agreement.
(ac) such representations There is no financing statement (or similar statement or instrument or registration under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Collateral, and warranties are made so long as any of the obligations remain unpaid, the Company shall not execute, authorize or permit to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except (i) financing statements filed or to be filed in respect of and covering the security interests granted by the Company in favor of NVPR pursuant to this Agreement.
(d) All information set forth herein, and all information contained in any documents, schedules and lists heretofore delivered to NVPR in connection with reference to an earlier datethis Agreement, in which each case each such representation relating to the Collateral, is accurate and warranty shall be true and correct complete in all material respects as respects. The Collateral described on the schedules attached hereto constitutes all of the property of such date only and type of Collateral owned or held by the Company.
(be) inaccuracies resulting from transactions prior to The Company shall not (i) sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the date hereof which were Collateral pledged by it hereunder except as expressly permitted under by the Loan DocumentsOption Agreement, as applicable.
C. Both before and after giving effect or (ii) create or permit to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has exist any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under lien upon or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or to any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan DocumentCollateral pledged by it hereunder.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Security Agreement, Security Agreement, Pledge and Assignment (GSRX Industries Inc.)
Representations, Warranties and Covenants. The Borrower 5.1 As a material inducement to Assignee entering into this Agreement, Assignor hereby represents and warrants toto Assignee that the following are true and correct as of the Effective Date, shall be true and correct as of the Closing Date, and covenants and agrees with, shall survive the Administrative Agent Closing and the Lenders thatwithdrawal of Assignor from the Partnership:
A. (a) Assignor is the owner of the Interest and the Interest is not subject to any lien, pledge or encumbrance of any nature whatsoever and Assignee shall acquire the same free of any rights or claims thereto by any other party claiming by, through or under Assignor.
(b) The execution and delivery of this Amendment Agreement by Assignor and the Loan Documents to which any Loan Party is a party performance of the transactions contemplated herein have been duly authorized by all requisite action on corporate and partnership proceedings and, assuming the part of such Loan Partydue and proper execution and delivery by Assignee, this Agreement is binding upon and enforceable against Assignor in accordance with its terms.
B. The representations (c) No litigation, action, proceeding, investigation or claim before any federal, state, municipal or other governmental department, commission, board or agency is pending or, to Assignor’s knowledge, threatened against or involving the Interest, or which questions the validity of this Agreement or pursuant to which an unfavorable judgment would restrain, prohibit, invalidate, set aside, rescind, prevent or make unlawful this Agreement or the transactions contemplated hereunder, and, to Assignor’s knowledge, there is no fact or circumstance which could give rise to any such litigation, action, proceeding, investigation or claim.
5.2 As a material inducement to Assignor entering into this Agreement, Assignee hereby represents and warranties of warrants to Assignor that the Loan Parties contained in the Credit Agreement and the other Loan Documents following are true and correct in all material respects on and as of the date Effective Date, shall be true and correct as of the Closing Date, and shall survive the Closing and the withdrawal of Assignor from the Partnership:
(a) The execution and delivery of this Amendment Agreement by Assignee and the performance of the transactions contemplated herein have been duly authorized by all requisite corporate and partnership proceedings.
(b) Assuming the due and proper execution and delivery by Assignor, this Agreement is binding upon and enforceable against Assignee in accordance with its terms.
(c) No proceeding before any federal, state, municipal or other governmental department, commission, board or agency is pending against Assignee or, to the knowledge of Assignee, threatened against Assignee pursuant to which an unfavorable judgment would restrain, prohibit, invalidate, set aside, rescind, prevent or make unlawful this Agreement or the transactions contemplated hereunder, nor does Assignee know of any reason to believe any such proceeding will be instituted.
(d) Assignee has incurred no obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement.
(e) Assignee is aware of the restrictions on transfer or encumbrance of the Interest under the Partnership Agreement, as though well as the transfer restrictions imposed by the Securities Act of 1933, as amended, and applicable state securities laws (the “Securities Laws”). Assignee is able to bear the economic risk of its investment in the Interest, is aware that it must hold the Interest for an indefinite period and that the Interest has not been registered under the applicable Securities Laws and may not be sold or otherwise transferred unless permitted by the terms of the Partnership Agreement and the Interest is registered, or an exemption from the registration requirements is available with respect thereto, under the Securities Laws. Assignee is acquiring the Interest for its own account and not with a view to resell, transfer or otherwise dispose thereof.
5.3 Except as expressly provided in this Section 5, no Party has made at any other representation or warranty concerning the Interest, the Partnership or any other matter.
5.4 Assignee covenants and agrees to use its commercially reasonable efforts to obtain the consents of HUD and the Authority as its “Contract Administrator” to the transactions contemplated by this Agreement. Assignee shall prepare and file all materials necessary to obtain such consents promptly after the execution of this Agreement and shall pursue its obtaining of such dateconsents with due diligence. Assignee shall indemnify Assignor and save Assignor harmless from any loss, cost, damage or expense that it may suffer as a result of Assignee’s failure to obtain such consents, except to the extent (a) that such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as failure results from any act or omission of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicableAssignor.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement, Assignment and Assumption Agreement (Real Estate Associates LTD Ii)
Representations, Warranties and Covenants. The Borrower a. Each Party hereby covenants, represents and warrants toto the others that (i) each person assigned to perform the services and/or the development work shall have the proper skill, training and covenants background so as to be able to perform the such services and/or development work by such Party in a competent and agrees withprofessional manner and (ii) all services and/or development work and any work product and other materials or documentation delivered under this Agreement by such Party shall have been completed in a thorough and professional manner.
b. Each Party hereby covenants, represents and warrants to the Administrative Agent other Parties that it has the corporate power and the Lenders that:
A. The execution authority to execute, deliver and perform this Agreement and other instruments and documents required or contemplated herein. Such execution, delivery of this Amendment and the Loan Documents to which any Loan Party is a party performance have been duly authorized by all requisite necessary action on the part of such Loan party, do not and will not require the approval of the shareholders of such Party and do not and will not contravene the Certificate of Incorporation or By-Laws of such Party.
B. The representations c. Each Party represents and warranties warrants that it has obtained all of the Loan Parties contained in necessary authority, approvals and permissions including, but not limited to, the Credit approval of its board of directors (if necessary) to enter into this Agreement and to perform all of its duties and obligations pursuant to this Agreement.
d. Each Party warrants that they have the other Loan Documents are true right to grant the licenses set forth in this Section 9. In the event any Party breaches any of these warranties, any non-breaching Party may terminate this Agreement immediately and correct in all material respects on the breaching party shall indemnify and as hold harmless the non-breaching Parties for any claims, grievances, causes of the date of this Amendment as though made at and as action, suits, demands, actions, damages, costs or losses arising out of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicablebreach.
C. Both before and after giving effect to this Amendmente. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, no Default or Event of Default shall have occurred and be continuingNO PARTY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED PRODUCTS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Sales, Marketing, Distribution and Product Integration Agreement (Mikohn Gaming Corp), Product Development and Integration Agreement (Shuffle Master Inc)
Representations, Warranties and Covenants. The Borrower hereby represents and (a) Xapo represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution (i) it is duly organized and existing under the laws of Delaware, validly existing and in good standing under the laws of its jurisdiction of incorporation, has all corporate powers required to carry on its business as now conducted, and is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary;
(ii) it has full power to execute and deliver this Agreement and to perform all the duties and obligations to be performed by it under this Agreement;
(iii) the execution, delivery and performance by Xapo of this Amendment Agreement and the Loan Documents to which any Loan Party is a party provision of the services contemplated hereby are within Xapo’s corporate powers and have been duly authorized by all requisite necessary corporate action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Xapo. This Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, a valid and binding obligation agreement of each Loan Party signatory thereto, Xapo enforceable against it Xapo in accordance with its respective terms, except as the enforcement may be terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar other laws affecting the creditors’ rights generally and remedies of creditors generally or the application of general principles of equity) and does not contravene, whether in or constitute a default under, any action at law provision of Applicable Law or proceeding in equity, and subject to the availability regulation or of the remedy articles of specific performance incorporation or other documents under which Xapo is organized or of any agreement, judgment, injunction, order, decree or other equitable remedy similar instrument binding upon Xapo;
(iv) it is not, and is not engaged in, any activities that would require it to be, registered or relief licensed with any United States federal government or agency as a depository or trust institution, or with the U.S. Commodity Futures Trading Commission or the U.S. Securities and Exchange Commission;
(v) it is duly registered as a Money Services Business with the U.S. Department of the Treasury Financial Crimes Enforcement Network, and is duly licensed under the money transmitter regime or virtual currency business activity regime in each U.S. state (other than New York State) that requires Xapo to enforce have such a license in order to fully and timely provide Xapo’s Services to Account Holder under this Agreement;
(vi) it will submit a complete application to the New York State Department of Financial Services to be licensed under the BitLicense Rule by the August 8, 2015 deadline, and will use best efforts to ensure that its grace period does not lapse (i.e., the time between August 8, 2015 and the date on which the NYDFS grants or denies a license or on which Xapo must otherwise cease its activities involving New York) and otherwise to secure a license; if Xapo’s grace period lapses or its application is denied, Xapo shall notify Account Holder immediately, and Account Holder shall have the option to terminate this Agreement immediately. If Xapo is granted a BitLicense, it shall thereafter continue to be duly licensed in New York State under the BitLicense Rule;
(vii) other than those licenses and registrations discussed in Sections (v)5(a)(v) and (vi), it has and shall maintain any material necessary consents, permits, licenses, approvals, authorizations or exemptions of any government or other regulatory authority or agency in the United States or any other Country required to fully and timely provide Xapo’s Services to Account Holder under this Agreement;
(viii) beneficial and legal ownership of all Custodial Coins is, and shall remain, freely transferable without the payment of money or value and that, subject to any rights it may have as a Beneficiary, Xapo has no ownership interest in the Custodial Coins;
(ix) it waives any right thereunderof Lien, pledge, retention or set-off or similar right it may have under any provision of law, regulation or contract with respect to the Custodial Coins;
(x) it shall comply with Delaware law, regulations and orders, as well as the guidelines, regulations and orders of the applicable local tax, or other competent authorities; and
(xi) none of the documents or information delivered to Account Holder in connection with the services contemplated by this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not misleading.
(b) Account Holder represents, warrants and covenants that:
(i) it has full power to execute and deliver this Agreement and to perform all the duties and obligations to be performed by it under this Agreement;
(ii) the execution, delivery and performance by Account Holder of this Agreement are within Account Holder’s corporate powers and have been duly authorized by all necessary corporate action on the part of Account Holder. This Agreement constitutes a valid and binding agreement of Account Holder enforceable against Account Holder in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity) and does not contravene, or constitute a default under, any provision of Applicable Law or regulation or of the articles of incorporation or other documents under which Account Holder is organized or of any agreement, judgment, injunction, order, decree or other similar instrument binding upon Account Holder;
(iii) it is not an entity that is, an entity owned or controlled by any person or entity that is, or conducting any activities on behalf of any person or entity that is (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, or any other Governmental Authority with jurisdiction over Xapo or Xapo’s Services with respect to U.S. sanctions laws; (ii) identified on the Denied Persons, Entity, or Unverified Lists of the U.S. Department of Commerce’s Bureau of Industry and Security; or (iii) located, organized or resident in a country or territory that is, or whose government is, the subject of U.S. economic sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan, or Syria; and
(iv) it has all rights, title and interest in and to the Custodial Coins as necessary for Xapo to perform its obligations under this Agreement.
Appears in 2 contracts
Samples: Bitcoin Custodial Agreement (Grayscale Bitcoin Trust (BTC)), Custodial Agreement (Bitcoin Investment Trust)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any Nonpublic Personal Information, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Gxxxx-Xxxxx-Xxxxxx Act (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self regulatory organizations, including 3011 of the remedy NASD, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of specific performance the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 2 contracts
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (American Performance Funds)
Representations, Warranties and Covenants. The Borrower hereby represents a. WPTE represents, warrants and warrants tocovenants to FSN that (i) WPTE has the full power and authority to make and perform the Agreement and WPTE will perform its duties hereunder in compliance with all terms and conditions herewith; (ii) the making or performance of the Agreement does not violate any agreement between WPTE and any third party; (iii) the rights FSN has acquired, and its use of those rights, will not infringe on or violate any copyright, trademark, right of privacy, publicity or other literary or dramatic or any other right of any third party; (iv) WPTE will do nothing to interfere with or impair FSN’s rights in the Agreement; (v) WPTE shall operate the Website in compliance with all applicable laws and regulations in each jurisdiction in which it does business; (vi) the Events will be sanctioned by any applicable organizations and authorities having jurisdiction over such Events, and the Events will be conducted according to all applicable rules and regulations of such organizations and authorities; and (vii) WPTE (directly or through a third party, if applicable) has or will enter into agreements with each Participant (“Participant Agreements”) binding such Participant to all applicable terms of this Agreement, and making FSN express third party beneficiaries to the Participant Agreements in connection with the Programs. Additionally, WPTE represents, warrants and covenants to FSN that it has obtained, or will obtain, any and agrees withall necessary rights, clearances, permissions and local permits in connection with the Sites and the Events for FSN to exercise its rights and perform its obligations hereunder including but not limited to: (1) payment of any and all necessary fees to any entity involved in the organization of the Events; and (2) obtaining any and all rights, clearances and permissions necessary to use in the Programs all names, likenesses, trademarks, service marks or other intellectual property of the Sites, the Administrative Agent Events and all entities related thereto. WPTE will provide to FSN upon request any documents that confirm WPTE has obtained the Lenders that:
A. The execution and delivery of this Amendment and necessary rights to perform the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan PartyAgreement.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Program Production and Televising Agreement (Allied Esports Entertainment, Inc.), Program Production and Televising Agreement (WPT Enterprises Inc)
Representations, Warranties and Covenants. The Borrower hereby represents You represent, warrant and warrants to, covenant as follows:
(a) You are a municipal corporation and covenants political subdivision duly organized and agrees with, existing under the Administrative Agent constitution and laws of the state in which You are located; (b) You are authorized under the constitution and laws of said state to enter into this Lease and the Lenders that:
A. The execution transaction contemplated hereby and delivery to perform all of this Amendment and the Loan Documents to which any Loan Party is a party Your obligations hereunder; (c) You have been duly authorized to execute and deliver this Lease by all proper action and approval of Your governing body at a meeting duly called, regularly convened and attended throughout by requisite action on the part of such Loan Party.
B. The representations and warranties majority of the Loan Parties contained in the Credit Agreement and the members thereof or by other Loan Documents are true and correct in all material respects on and as of the date of appropriate official approval; (d) this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents Lease constitutes the Your legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as to the enforcement may be subject to extent limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar reorganization or other laws affecting creditors’ rights generally; (e) no event or condition that constitutes, or with the rights and remedies giving of creditors generally notice or the application lapse of principles time or both would constitute, a Default exists at the Commencement Date; (f) You have in accordance with the requirements of equitylawfully budgeted and appropriated sufficient funds for the current fiscal year to make the Payments scheduled to come due during the Original Term and to meet Your other obligations for the Original Term and such funds have not been extended for other purposes; (g) You will do or cause to be done all things necessary to preserve and keep in full force and effect Your existence as a corporate and body politic; (h) You have complied with such public bidding requirements as may be applicable to this Lease and Your acquisition of the Equipment hereunder; (i) there is no action suit, whether in any action proceeding inquiry or investigation, at law or proceeding in equity, and subject before or by any court, public board or body, pending or threatened against or affecting You or this Lease, nor to the availability best of Your knowledge is there any basis therefore wherein an unfavorable decision ruling or finding would materially adversely affect the transactions contemplated by this Lease or any other document, agreement or certificate which is used or contemplated for use in the consummation of the remedy transactions contemplated by this Lease or materially adversely affect Your financial condition or properties; (j) You have obtained all authorizations, consents and approvals of specific governmental bodies or agencies required in connection with the execution and delivery of this Lease or in connection with the performance of Your obligations hereunder; (k) the entering into and performance of this Lease or any other document or agreement contemplated hereby to which the You are or are to be a party will not violate any judgment, order, law or regulation applicable to You or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest of other equitable remedy encumbrance on any of Your assets or relief the Equipment pursuant to enforce any right thereunder.indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which You are a party or by which You or Your assets maybe be bound, except as herein provided;
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Representations, Warranties and Covenants. 6.4.1. The Borrower Merchant hereby represents and warrants towarrants, from date hereof and covenants throughout the term of this Agreement, that: (i) in case the Merchant is a juridical person, it is a legal person duly organized and agrees withvalidly existing under the laws of the Republic of the Philippines, (ii) it has full legal capacity, power and authority to enter into this Agreement, to undertake and consummate the Administrative Agent transactions contemplated under this Agreement and to engage in the Lenders that:
A. The business declared to Home Credit under this Agreement and described above, (iii) it has taken or obtained all necessary approvals and consents (including corporate and other such actions, in case the Merchant is a juridical person) to authorize the execution and delivery performance of this Amendment Agreement and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained engage in the business declared to Home Credit under this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of described above, (iv) this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the its legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with the terms stated herein, (v) neither its respective termsexecution of this Agreement nor the performance of its obligations or the exercise of its rights under this Agreement will (x) conflict with or result in a breach of any law, except rule, regulation, judgment, order, authorization, agreement or obligation applicable to it, or (y) cause any limitation placed upon it or the powers of its directors (in case the Merchant is a juridical person) to be exceeded, or (z) violate or conflict with any provision of its charter documents (in case the Merchant is a juridical person), (vi) all authorizations required from any governmental or other authority or from its shareholders (as applicable) or creditors for or in connection with the execution, validity and performance of this Agreement have been obtained and are in full force and effect, (vii) it is in compliance with the provisions of anti-money laundering and terrorism financing policies, laws, rules and regulations applicable to it and the transactions contemplated under this Agreement, as well as the enforcement may be subject Data Protection Rules, anti-bribery legislation and prevailing laws on unfair competition, (viii) it is not in default under any law, rule, regulation, order, authorization, agreement or obligation applicable to bankruptcyit or its assets or revenues (and which has not been waived), insolvency, reorganization, moratorium the consequences of which default could materially and similar laws affecting the rights and remedies of creditors generally adversely affect its business or the application of principles of equity, whether in any action at law financial condition or proceeding in equityits ability to perform its obligations under this Agreement, and subject (ix) it recognizes and respects the full legal and beneficial ownership of Home Credit over all Intellectual Property related to Home Credit QR System and all marketing collateral and other materials provided to the availability Merchant under this Agreement.
6.4.2. In addition to the foregoing, the Merchant hereby warrants and covenants that: (i) the selling price of products and/or services it shall offer to a customer who elects to transact using QR Payment shall be at the remedy normal/regular selling price or cost of specific performance such products and/or services it shall offer to cash-paying customers, without any additional percentage, surcharge, add-on or such similar fee, (ii) it shall deal with all complaints made by a customer transacting using Home Credit Pay in the same manner as complaints made by a customer transacting using other modes of any other equitable remedy or relief to enforce any right thereunder.payment, which shall at all times be within the turnaround time prescribed by Home Credit,
Appears in 2 contracts
Samples: Merchant Agreement, Merchant Agreement
Representations, Warranties and Covenants. The Borrower 27.1 Each Party hereby represents and represents, warrants toand, and where denoted below, covenants and agrees with, to the Administrative Agent and other Party as of the Lenders Effective Date that:
A. The (a) it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part performance of such Loan Party.its obligations;
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan that Party signatory thereto, enforceable against it in accordance with its respective terms;
(c) it has obtained all authorisations, licences or consents from, and notices or filings with, each Governmental Authority that are necessary to enable it to execute, deliver and perform its obligations under this Agreement and are in full force and effect and all conditions of each authorisation, licence, consent, notice or filing have been complied with;
(d) it has not and will not, after the Effective Date and during the Term, grant any right to any Third Party that would conflict with the rights granted to the other Party hereunder; and
(e) each employee or other representative of that Party (and its Affiliates) involved in performing that Party’s responsibilities under each Research Plan and each NSM Research Plan has executed and, as of the start of such employee’s or other representative’s performance under such Research Plan or NSM Research Plan, will have executed agreements requiring assignment to that Party (or its Affiliates) of all intellectual property rights subsisting in any Inventions made during the course of and as a result of the individual’s association with that Party, and obligating the relevant individual to maintain as confidential the Confidential Information of that Party (and its Affiliates).
27.2 As of the Effective Date and as of the commencement of each Research Program involving a Sanofi-Originated Molecule, Sanofi hereby represents and warrants to EXS that, so far as it is aware, the use of any Sanofi Background IP provided with respect to such Sanofi-Originated Molecule in the manner proposed to be conducted by such Research Program pursuant to this Agreement will not infringe the rights of any Third Party.
27.3 As of the Effective Date and as of the commencement of each Research Program, EXS hereby represents and warrants that so far as it is aware, the use of any EXS Background IP or EXS Platform Technology IP in the manner proposed to be conducted by such Research Program pursuant to this Agreement will not infringe the rights of any Third Party.
27.4 With respect to any representation or warranty given by a Party pursuant to Clause 27.2 or 27.3 at the commencement of any Research Program, that Party shall not be liable in respect of any claim that it has breached such representation or warranty to the extent that the fact, matter, event or circumstance has been disclosed to the other Party in writing prior to the commencement of the Research Program or is a fact, matter, event or circumstance of which the other Party has actual knowledge as at the commencement of the Research Program.
27.5 As of the Effective Date, EXS hereby represents and warrants that:
(a) to EXS’s knowledge, neither EXS nor any of its Affiliates have received any notice, written or otherwise, of any Claim that any Patent Rights or Know-How (including any trade secret right) owned or controlled by a Third Party would be infringed, misappropriated or otherwise violated by the performance by EXS of the Research activities hereunder;
(b) to EXS’s knowledge, there are no activities by Third Parties that would constitute any material misappropriation of the Know-How included within the EXS Background IP;
(c) EXS has not received any written notice of a Claim or written threat of a Claim made by any Third Party against EXS or its Affiliates that alleges that any EXS Background IP or EXS Platform Technology IP is invalid or unenforceable; and
(d) there are no Claims pending or, to the knowledge of EXS, threatened against EXS or its Affiliates which could reasonably be expected to adversely affect the EXS Background IP or EXS’s Control thereof.
27.6 Each Party covenants to the other that it shall (a) to the extent applicable, perform its activities pursuant to this Agreement in compliance with Applicable Laws and good laboratory and clinical practices; (b) with respect to the care, handling and use in Research Program activities of any non-human animals, at all times comply (and shall ensure compliance by any of its subcontractors) with all Applicable Laws and the most current best practices for the proper care, handling and use of animals in biopharmaceutical research activities; and (c) notify the other Party in writing promptly on becoming aware of any material breach of any representation, warranty or covenant given by either Party under this Clause 27.
27.7 Save as provided in this Agreement, no representations, warranties or other terms, except express or implied, statutory or otherwise, as the enforcement may be subject to bankruptcycondition, insolvencyquality, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally performance or the application of principles of equity, whether in any action at law fitness for purpose are given or proceeding in equityassumed by either Party, and subject all those representations, warranties and terms are excluded save to the availability of the remedy of specific performance or of extent that any other equitable remedy or relief to enforce any right thereunderexclusion is prohibited by law.
Appears in 2 contracts
Samples: Collaboration and License Agreement (Exscientia PLC), Collaboration and License Agreement (Exscientia PLC)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any “Nonpublic Personal Information”, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act of 1970 (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self regulatory organizations, including Rule 3011 of the remedy National Association of specific performance Securities Dealers, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 2 contracts
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds), Shareholder Servicing Agreement (Cavanal Hill Funds)
Representations, Warranties and Covenants. The Borrower hereby 21.1 Unica represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders Quetzal that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations This Agreement has been duly executed and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsdelivered by Unica, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, its valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar limited by laws affecting the enforcement of creditor's rights and remedies of creditors generally or equitable principles. Unica has all necessary corporate power and authority to enter into and perform its obligations under this Agreement and to consummate the application transactions contemplated hereby. The execution, delivery and performance of principles of equity, whether in any this Agreement have been duly and validly authorized by all necessary corporate action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or on Unica's part.
(b) No consent of any other equitable remedy party and no consent, license, approval or relief authorization of, or exemption by, or filing, restriction or declaration with, any governmental authority, bureau, agency or regulatory authority, is required in connection with the execution, delivery or performance by Unica of this Agreement.
(c) The execution, delivery and performance of this Agreement will not violate any provision in Unica's certificate of incorporation or by-laws, nor will it constitute or result in the breach of any term, condition or provision of, or constitute a default under, or accelerate or permit the acceleration of any performance required by, any agreement or other instrument to enforce which Unica is a party or by which any right thereunderpart of its property is bound, or violate any law, regulations, judgment or order binding upon Unica.
(d) No proceeding is pending or, to the knowledge of Unica, threatened against Unica before any court, government agency or arbitral tribunal that would enjoin or prohibit, or which otherwise questions the validity of, any action taken or to be taken in connection with this Agreement.
(e) The Programming shall include (i) public service announcements (including, at Quetzal's request from time to time, a reasonable number of public service announcements of local interest); (ii) an announcement in form sufficient to meet the station identification requirements of the FCC at the beginning of each hour; (iii) an announcement at the beginning of each segment of programming to indicate the program time has been purchased by Unica; and (iv) any other announcement that may be required by applicable law or regulations (including, but not limited to, Emergency Alert System tests).
(f) The performing rights to all music contained in the Programming, if any, shall be licensed to Unica by BMI, ASCAP, SESAC or the composer directly or shall be in the public domain.
Appears in 2 contracts
Samples: Time Brokerage Agreement (Radio Unica Corp), Time Brokerage Agreement (Radio Unica Communications Corp)
Representations, Warranties and Covenants. The (a) Borrower hereby represents and warrants to, and covenants and agrees with, Lender that: (i) Borrower has the Administrative Agent form of business organization indicated above; Borrower is duly organized in the jurisdiction of organization set forth above; and is existing, in good standing and qualified to do business wherever necessary to carry on its present business and operations and to own its property; Borrower has full corporate or other power and authority to enter into each Agreement and the Lenders that:
A. The execution Other Agreements, to incur the borrowings hereunder, and delivery of this Amendment to perform its obligations under each Agreement and the Loan Documents Other Agreements; (ii) each Agreement, when entered into has been duly executed and authorized, requires no further director, shareholder, member, partner or other third party approval of, or the giving of notice to, any Governmental Authority (as hereinafter defined) and does not contravene any law, regulation or other governmental order, any certificate or articles of incorporation or bylaws or partnership certificate or operating agreement, or any agreement, indenture, or other instrument to which any Loan Party Borrower is a party have been duly authorized or by all requisite action on the part of such Loan Party.
B. The representations which it may be bound and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid valid, and binding obligation of each Loan Party signatory thereto, Borrower enforceable against it in accordance with its respective terms; (iii) the provisions of each Agreement create legal and valid liens on and security interests in all of the Collateral in favor of the Lender, except as and such liens and security interests constitute perfected and continuing liens on and security interest in the enforcement may be subject to bankruptcyCollateral, insolvencysecuring the Obligations, reorganizationenforceable against Borrower and all third parties, moratorium and similar laws affecting having priority over all other liens, security interests and other encumbrances on the rights Collateral; (iv) Borrower, any guarantor of Borrower’s obligations hereunder (a “Guarantor”) and remedies of creditors generally any other person who owns a controlling interest or the application of principles of equity, whether otherwise controls Borrower or any Guarantor in any action at manner is not listed on the Specially Designated Nationals and Blocked Persons Lists maintained by the Office of Foreign Assets Control (“OFAC”) or other similar lists maintained by the federal government pursuant to any federal law or proceeding regulation regarding a person designated under Executive Order No. 13224 or similar lists and Borrower is in equitycompliance with any Bank Secrecy Act regulations and other federal regulations to prevent money laundering, and subject to the availability extent Borrower is located in or carries on business in any Province, Borrower and each director, officer, employee and agent thereof is in compliance with all applicable Sanctions, Anti-Corruption Laws and AML Laws and Borrower is not, nor is any director, officer, employee or agent of Borrower (A) the remedy of specific performance or subject of any other equitable remedy Sanctions, or relief (B) located, organized or resident in a country or territory that is, or whose government is, the subject of any Sanction. For the purposes hereof, the following definitions are applicable to enforce any right thereunder.the provisions hereof:
Appears in 2 contracts
Samples: Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.), Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.)
Representations, Warranties and Covenants. (a) The Borrower Issuer hereby represents and warrants to the Investment Manager as follows as of the date hereof:
(i) The Issuer has been duly incorporated and is validly existing under the laws of the Cayman Islands, has the full corporate power and authority to own its assets and the obligations proposed to be owned by it and included in the Collateral and to transact the business in which it is presently and proposed to be engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under the Transaction Documents would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(ii) The Issuer has full corporate power and authority to execute, deliver and perform the Transaction Documents and all obligations required under the Transaction Documents and has taken all necessary action to authorize the Transaction Documents on the terms and conditions hereof and thereof and the execution, delivery and performance of Transaction Documents and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other person including, without limitation, shareholders and creditors of the Issuer, and no license, permit, approval or authorization of, exemption by, notice or report to, and covenants and agrees or registration, filing or declaration with, any governmental authority is required by the Administrative Agent and Issuer in connection with the Lenders that:
A. The execution and delivery Transaction Documents or the execution, delivery, performance, validity or enforceability of this Amendment and the Loan Transaction Documents or the obligations imposed upon it hereunder or thereunder. Each Transactional Document to which any Loan Party the Issuer is a party have has been executed and delivered by the Issuer (by its duly authorized by director or attorney) and, following execution of all requisite action parties thereto, constitutes the valid and legally binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (a) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Issuer and (b) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iii) The execution, delivery and performance of this Agreement, the other Transaction Documents and the documents and instruments required hereunder and thereunder will not violate any provision of any existing law or regulation binding on the part Issuer, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets is or may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or its ability to perform its obligations under the Transaction Documents, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such Loan Partymortgage, indenture, lease, contract or other agreement, instrument or undertaking (other than the lien of the Indenture).
B. (iv) The representations and warranties Issuer is not in violation of its Governing Instruments or in breach or violation of or in default under the Indenture or any contract or agreement to which it is a party or by which it or any of its assets may be bound, or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the Issuer or its properties, the breach or violation of which or default under which would have a material adverse effect on the ability of the Loan Parties contained in Issuer to perform its obligations under, or the Credit validity and enforceability of, this Agreement and the or any other Loan Documents are true and correct in all material respects on and Transactional Document.
(v) The Offering Memorandum as of the date of this Amendment as though made at the Offering Memorandum and as of such datethe Closing Date does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made as to statements in or omissions from the section of the Offering Memorandum entitled “Investment Manager.”
(vi) The Issuer is not an “investment company” required to register under the Investment Company Act, and has not engaged in any transaction that would result in the violation of, or require the Issuer or the pool of Collateral to register as an investment company under, the Investment Company Act.
(vii) True and complete copies of the Transaction Documents and the Issuer’s Governing Instruments have been or, no later than the Closing Date, will be delivered to the extent Investment Manager. The Issuer agrees to deliver a true and complete copy of each and every amendment to any Transactional Document as promptly as practicable after its adoption or execution.
(b) The Investment Manager hereby represents, warrants and covenants to the Issuer as follows as of the date hereof:
(i) The Investment Manager is a non-diversified closed end investment company duly organized, validly existing and in good standing under the laws of Maryland and has full power and authority as a corporation to own its assets and to transact the business in which it is currently engaged and is duly qualified as a corporation and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of this Agreement would require, such qualification, except for those jurisdictions in which the failure to be so qualified, authorized or licensed would not have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager or on the ability of the Investment Manager to perform its obligations hereunder, or on the validity or enforceability of this Agreement and the provisions of the Indenture applicable to the Investment Manager.
(ii) The Investment Manager is not registered as an investment adviser under the Advisers Act.
(iii) The Investment Manager has the necessary corporate power and authority to execute, deliver and perform this Agreement and all obligations required hereunder and under the provisions of the Indenture applicable to the Investment Manager and has taken all necessary corporate action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Indenture applicable to the Investment Manager. No consent of any other person, including, without limitation, members or creditors of the Investment Manager, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Investment Manager in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement or the obligations required hereunder or under the terms of the Indenture applicable to the Investment Manager. Each Transactional Document to which the Investment Manager is a party has been executed and delivered by the Investment Manager (by its duly authorized officer), and constitutes the valid and legally binding obligation of the Investment Manager enforceable against the Investment Manager in accordance with its terms, subject, as to enforcement, to (a) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such representations laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Investment Manager and warranties are made (b) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iv) The execution, delivery and performance of this Agreement and the terms of the Indenture applicable to the Investment Manager and the documents and instruments required hereunder or under such terms of the Indenture and the other Transaction Documents to which it is a party will not violate any provision of any existing law or regulation binding on the Investment Manager, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Investment Manager, or the Governing Instruments of, or any securities issued by, the Investment Manager or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Investment Manager is a party or by which the Investment Manager or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets or financial condition of the Investment Manager or any of its subsidiaries, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking.
(v) The section entitled “Investment Manager” contained in the Offering Memorandum does not purport to provide the scope of disclosure required to be included in a prospectus with reference respect to an earlier datea registrant in connection with the offer and sale of securities of such registrant registered under the Securities Act (other than with respect to the anti-fraud rules under the Securities Act). Within such scope of disclosure, in which case each however, as of the date of such representation Offering Memorandum and warranty shall be as of the Closing Date, such section accurately restates the information provided by the Investment Manager and is true and correct in all material respects and does not omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vi) To the Investment Manager’s best knowledge, no event constituting Cause hereunder has occurred and is continuing and no event that with the giving of notice or passage of time would become an event constituting Cause has occurred or is continuing and no such event would occur as a result of its entering into or performing its obligations under this Agreement.
(c) The Investment Manager makes no representation, express or implied, with respect to the Issuer or any portion of the Offering Memorandum other than as set forth in clause (b)(v) above.
(d) The Investment Manager and the Issuer agree that each shall take such actions, and furnish such certificates, opinions and other documents, as may be reasonably requested by the other in order to effectuate the purposes of this Agreement and to facilitate compliance with applicable laws and regulations and the terms of this Agreement.
(e) The Investment Manager agrees that it shall promptly notify the Issuer, the Trustee and each Rating Agency if any Cause shall occur with respect to the Investment Manager.
(f) The Investment Manager shall promptly notify the Issuer, the Trustee and each Rating Agency if any representation, warranty or certification previously made by the Investment Manager is subsequently determined to have been incorrect or misleading in any material respect as of the date such date only representation, warranty or certification was made.
(g) Each of the Issuer and the Investment Manager shall, so long as either party has or may have any obligation under this Agreement:
(bi) inaccuracies resulting from transactions Use commercially reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement in order to perform its obligation hereunder and use all commercially reasonable efforts to obtain such consents that become necessary therefor in the future; and
(ii) comply with all applicable laws, regulations and orders in all material respects to which it may be subject if failure to do so would materially impair its ability to perform its obligations under this Agreement.
(h) The Investment Manager agrees that the Investment Manager (or its Affiliates) shall hold legal and beneficial ownership of 100% of the Subordinated Notes for as long as it is the Investment Manager under this Agreement.
(i) At any time prior to the date hereof which were expressly permitted under earlier of (i) the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As completion of the Amendment offering of Rated Notes and (ii) the date 90 days after the Closing Date (as defined below)Date, no Loan Party has the Investment Manager shall not make any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions public announcement concerning the issuance of the Administrative Agent Rated Notes, the Investment Manager’s role hereunder or any Lenderother aspect of the transaction contemplated by this Agreement, the effectiveness, genuineness, validity, collectibility Indenture or enforceability the Offering Memorandum without the prior written consent of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan DocumentPlacement Agent.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Investment Management Agreement, Investment Management Agreement (Saratoga Investment Corp.)
Representations, Warranties and Covenants. The Borrower Each Party hereby represents represents, warrants and warrants tocovenants to the other Party as of the Effective Date, as follows:
9.1.1 Such Party (i) has the power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and covenants and agrees with, (ii) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement. This Agreement has been duly authorized by all requisite action executed and delivered on the part behalf of such Loan Party.
B. The representations Party and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it and is in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity.
9.1.2 Such Party is not aware of any pending or threatened litigation (and has not received any communication) that alleges that such Party’s activities related to this Agreement have violated, or that by conducting the activities as contemplated in equitythis Agreement such Party would violate, any of the intellectual property rights of any Person (after giving effect to the license grants in this Agreement).
9.1.3 All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such Party in connection with the execution and delivery of this Agreement and the performance of its obligations under this Agreement have been obtained (other than such consents, approvals and authorizations that the Parties will obtain in the course of performing their obligations under this Agreement).
9.1.4 The execution and delivery of this Agreement the performance of such Party’s obligations hereunder (i) do not conflict with or violate in any material way any requirement of applicable Law, (ii) do not conflict with or violate any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such Party, and subject to the availability of the remedy of specific performance (iii) do not conflict with, violate, or of breach or constitute a default or require any other equitable remedy consent under, any contractual obligation or relief to enforce any right thereundercourt or administrative order by which such Party is bound.
Appears in 2 contracts
Samples: Clinical Development and Collaboration Agreement (Neothetics, Inc.), Clinical Development and Collaboration Agreement (Neothetics, Inc.)
Representations, Warranties and Covenants. The Borrower hereby 11.1. Each Party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreements of such party or any judgment, order, or decree by which such party is bound.
11.2. The Company represents, warrants and covenants that:
11.2.1. The Company will not Transfer, assist any third party to Transfer, or otherwise make available for use in the Territory any Product or Xxxx to a party other than Geospatial or, through Geospatial or at its direction, to an End-User.
11.2.2. The Company will include or require inclusion in all sales, license, distribution or similar agreements under which Products are made available to a party other than Geospatial or, through Geospatial or at its direction, an End-User (a) a requirement that such Products not be used, not be permitted for use and not be resold or Transferred for use in the Territory; and (b) a provision stating that any warranty associated with the Products shall become immediately, automatically and entirely void should the provision described in (a) of this paragraph be violated.
11.2.3. The Company will comply with and otherwise respect the exclusivity rights granted Geospatial as set forth in Section 3 of this Agreement.
11.3. The covenants set forth in Sections 12.2.1 and 12.2.2 of this Agreement are intended to “run with” the License Rights. Accordingly, if the Company assigns to any third party any of its intellectual rights that relate to the License Rights, the Company covenants that the assignment agreement will include a provision pursuant to which the assignee agrees that its ownership of such intellectual property right is subject to, and covenants it will comply with and agrees withhonor, the Administrative Agent aforementioned covenants.
11.4. For one (1) year from the date of delivery to Geospatial’s original End-User, but no longer than sixteen (16) months from delivery to Geospatial, the Company warrants the Products to be free from defects in material and workmanship and the Lenders that:
A. The execution Company Products shall further be free from material defects, program errors, and delivery of this Amendment nonconformities and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct shall otherwise perform in all material respects on in the manner specified in the documentation and as other written materials provided to Geospatial. In event of breach of the date warranty set forth in this paragraph, the Company’s obligation is limited to replacing, on an exchange basis, the defective parts or repairing the Company Products. All replaced parts will become the property of the Company. This warranty will not apply if repair or parts replacement is required because of accident, neglect, misuse, transportation or cause other than ordinary use. This warranty does not apply to any articles which have been repaired or altered except by the Company, except that the warranty shall not be affected by (a) any repair or alteration of a Product by a technician or other personnel employed or retained by Geospatial and trained as required under this Amendment as though made at and as Agreement (unless the defect is caused by negligence or intentional misconduct in the course of such daterepair or alteration) or (b) any modification of the Company Product by or on behalf of Geospatial, except if and to the extent (a) that such representations and warranties are made with reference modification is not the cause of any such defect or failure to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicableperform.
C. Both before and after giving effect to this Amendment11.5. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, no Default or Event of Default shall have occurred and be continuingEXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 2 contracts
Samples: Exclusive License and Distribution Agreement, Exclusive License and Distribution Agreement (Geospatial Holdings, Inc.)
Representations, Warranties and Covenants. The Borrower hereby A. Lessee represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. (i) Lessee is a corporation organized and existing under the Laws of Delaware and has the corporate power and authority to carry on its business as presently conducted and to perform its obligations under this Agreement and is the holder of all necessary licenses issued by all governmental authorities having jurisdiction to authorize or permit Lessee to engage in air transportation;
(ii) This Agreement has been duly authorized by all necessary corporate action on the part of Lessee, and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any terms and provisions hereof will contravene any law applicable to Lessee or result in any breach of, or constitute any default under or result in the creation of any lien, charge or encumbrance upon any property of Lessee under, any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, corporate charter, by-law, or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets may be bound or affected;
(iii) The execution and delivery by Lessee of this Agreement, and any of the transactions by Lessee contemplated hereby, have received, and Lessee has complied with, every necessary consent, approval, order, or authorization of, or registration with, or the giving or prior notice to, any government authority having jurisdiction with respect to the execution and delivery of this Amendment Agreement or the validity and enforceability hereof or the Loan Documents to which any Loan Party is a party have satisfaction of all monetary and other obligations hereunder.
(iv) This Agreement has been duly authorized entered into and delivered by Lessee and constitutes the valid, legal and binding obligation of Lessee, enforceable in accordance with its terms.
(v) It is not necessary under the laws of the United States and/or Hawaii in order to ensure the validity, effectiveness and enforceability of this Agreement or to protect the property rights of Lessor in the Aircraft that this Agreement or any other instrument relating thereto be filed, registered or recorded or that any other action be taken, except for recording in the FAA Aircraft Registry in Oklahoma City, and a notice filing with the Secretary of State of Hawaii and that under the laws of the United States and Hawaii, the property rights of Lessor in the Aircraft will have priority in all requisite action on respects over the part claims of such Loan Partyall creditors of Lessee;
(vi) There are no suits or legal proceedings pending or threatened against Lessee which, if adversely determined, would have a material adverse effect upon its financial condition or business or its ability to perform its obligations hereunder, other than as heretofore disclosed in writing by Lessee to Lessor.
B. The representations Lessee hereby covenants with Lessor that from the Delivery Date and warranties of during the Loan Parties contained in the Credit Agreement Term hereof it will:
(i) duly pay and the other Loan Documents are true discharge all Taxes, assessments and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions governmental charges upon it or against its properties prior to the date hereof on which were expressly permitted under penalties are attached thereto, unless and to the Loan Documentsextent only that the same be contested in good faith and by appropriate proceedings by Lessee. In particular, Lessee shall pay all airport charges in respect of the Aircraft according as applicablethe same may be incurred;
(ii) remain in and continue to operate substantially the same line of business as presently engaged in, preserve its corporate existence, conduct its business in an orderly efficient and customary manner, satisfy its debts and obligations as they fall due and keep and maintain all of its properties in good working order and condition;
(iii) maintain insurance in respect of its liabilities and properties in accordance with good airline practice;
(iv) comply with all laws and regulations for the time being in force in the State of Hawaii and in any country, to, from, in or over which the Aircraft is flown;
(v) within sixty (60) days following the end of each quarter, furnish to Lessor an unaudited balance sheet of Lessee prepared by it as of the period ended, together with the related profit and loss statement for such period;
(vi) within one hundred twenty (120) days after the close of each fiscal year of Lessee, furnish Lessor an audited balance sheet, and profit and loss statement of Lessee (and an unaudited balance sheet); and
(vii) at its own expense from time to time do and perform such other and further acts and execute and deliver any and all other further instruments as may be required by Law or reasonably requested by Lessor to establish, maintain and protect the respective rights and remedies of Lessor and to carry out and give effect to the intents and purposes of this Agreement and the parties hereto provided, however, Lessee will be reimbursed for actual costs associated with any transfer of Lessor's interest in the Aircraft.
C. Both before To the extent permitted by law, Lessee hereby agrees, in accordance with Section 1110 of Title 11 of the United States Code, or any superseding statutes, as amended from time to time, that the title of Lessor to the Aircraft, and after giving effect any right of Lessor to take possession of such Aircraft in compliance with the provisions of this AmendmentLease will not be affected by the provisions of Section 362 or 363 of such Title 11, no Default or Event other analogous part of Default shall have occurred and be continuingany superseding statutes, as amended from time to time.
D. As The Lessor represents and warrants to the Lessee that:
(i) The Lessor is a limited liability company formed under the laws of Illinois and has the Amendment Closing Date power to own its assets and carry on its business as it is now being conducted.
(as defined below), no Loan Party ii) The Lessor has any groundsthe power to enter into and perform, and hereby agrees not has taken all necessary action to challenge (or to allege or to pursue any matterauthorize the entry into, cause or claim arising under or with respect to)performance and delivery of, in any case based upon acts or omissions of this Agreement and the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documenttransactions contemplated by this Agreement.
E. Each of the Loan Documents (iii) This Agreement constitutes the Lessor's legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it Lessor in accordance with its respective terms, except as .
(iv) The entry into and performance by the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityLessor of, and subject the transactions contemplated by, this Agreement do not and will not:
(a) conflict with any laws binding on the Lessor;
(b) conflict with the constitutional documents of the Lessor; or
(c) conflict with any document which is binding upon the Lessor or any of its assets.
(v) So far as concerns the obligations of the Lessor, all authorizations, consents, registrations and notifications required under the laws of the State of Illinois, in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Agreement by the Lessor have been (or will on or before Delivery have been) obtained or effected (as appropriate) and are (or will on their being obtained or effected be) in full force and effect.
(vi) On the Delivery Date, the Lessor shall have the right to lease the Aircraft to the availability Lessee under this Agreement.
E. The representations and warranties in Sections A and D above will survive the execution of this Agreement. The representations and warranties contained in Sections A and D above will be deemed to be repeated by the remedy of specific performance or of any other equitable remedy or relief Lessee and Lessor on delivery and on each subsequent Rent Date as if made with reference to enforce any right thereunderthe facts and circumstances then existing.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc), Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Representations, Warranties and Covenants. The Borrower 12.1.1 Each of the Parties hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and Party that, as of the date of this Amendment as though made at and as of such date, except to the extent Effective Date:
(a) such representations Such Party has full corporate right, power and warranties are made with reference authority to an earlier date, in which case each such representation enter into this Agreement and warranty shall be true to perform its respective obligations under this Agreement and correct in all material respects as of such date only that it has the right to grant the licenses and sublicenses granted pursuant to this Agreement.
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before This Agreement is a legal and after giving effect to this Amendment, no Default or Event of Default shall have occurred valid obligation binding upon such Party and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms. The execution, except as delivery and performance of the enforcement may be subject Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, to bankruptcywhich it is a Party or by which it is bound, insolvency, reorganization, moratorium and similar laws affecting nor violate any Law of any Governmental Authority having jurisdiction over it.
(c) Such Party has not granted any right to any Third Party that would conflict with the rights granted to the other Party hereunder.
(d) Except for Regulatory Approvals, pricing and/or reimbursement approvals, manufacturing approvals and/or similar approvals necessary for the Development, Manufacture or Commercialization of the Compound and remedies Collaboration Products, such Party has obtained all necessary consents, approvals and authorizations of creditors generally all Government Authorities and other Persons required to be obtained by it as of the Effective Date in connection with the execution, delivery and performance of this Agreement; provided, that, for clarity, it is agreed that a termination by a Party in accordance with Section 13.6 shall not be deemed to constitute evidence of a breach of this Section 12.1.1(d) .
12.1.2 Each Party hereby covenants to the other Party that, during the Term:
(a) Such Party will not grant any right to any Third Party that would conflict with the rights granted to the other Party hereunder.
(b) In the course of the Development of the Compound and Collaboration Products, such Party will not use any employee or consultant that is debarred by the FDA or, to such Party’s knowledge, is the subject of debarment proceedings by the FDA.
12.1.3 New River hereby represents and warrants to Shire that, as of the Effective Date:
(a) There is no action or proceeding pending or, to New River’s knowledge, threatened, with respect to Collaboration Products and/or the Compound, including without limitation the conduct of any clinical trials, manufacturing activities or other activities, or that questions the validity of this Agreement or any action taken by New River in connection with the execution of this Agreement. There are no material unsatisfied judgments or outstanding orders, injunctions, decrees, stipulations or awards (whether rendered by a court, an administrative agency or by an arbitrator) against New River with respect to Collaboration Products and/or the Compound, including without limitation the conduct of any clinical trials, manufacturing activities or other activities.
(b) IND #67482 and IND #70109 (i) have been filed in the name of New River and are in effect; and (ii) to New River’s knowledge, constitutes all governmental approvals, permits and licenses required by New River in connection with the performance of clinical trials concerning the Collaboration Product or the application Compound, as such clinical trials are conducted by New River. Attached hereto as Schedule 12.1.3(b) is a true, correct and complete list of principles of equity, whether in any action at law or proceeding in equity, all INDs and subject Drug Approval Applications filed with a Governmental Authority relating to the availability of the remedy of specific performance Compound or of any other equitable remedy or relief to enforce any right thereundera Collaboration Product.
Appears in 2 contracts
Samples: Collaboration Agreement (Shire Pharmaceuticals Group PLC), Collaboration Agreement (Shire Pharmaceuticals Group PLC)
Representations, Warranties and Covenants. The Borrower hereby (a) Each Party represents and warrants toto the other Party that it has the full right, power, and covenants authority to execute and agrees withdeliver this Agreement and to perform its terms, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true consummation of the transactions required by this Agreement will not violate or conflict with any charter provision or bylaw of a Party or any of its Affiliates, it has taken all required corporate actions to approve and correct adopt this Agreement, this Agreement is enforceable against such Party according to its terms, that the person or person executing this Agreement on its behalf is duly authorized and empowered to do so and that it is not aware of any impediment that would inhibit its ability to perform the terms and conditions imposed on it by this Agreement
(b) Each Party warrants that it has enforceable written agreements with all of its employees, consultants, or independent contractors who receive Confidential Information under this Agreement obligating them to keep such information confidential and to use such information only as permitted in this Agreement and assigning to such Party ownership of all material respects on and intellectual property rights created in the course of their employment.
(c) Each Party warrants that as of the date Effective Date, it is entitled to grant the rights and licenses granted to the other Party under this Agreement, and is not currently bound, and will not be bound during the Term, by any agreement with any Third Party, or by any outstanding order, judgment, or decree of any court or administrative agency, that restricts it in any way from granting to the other Party the rights and licenses as set forth in this Amendment as though made at and Agreement.
(d) Each Party warrants that it has not granted as of such datethe Effective Date any right, except to the extent (a) such representations and warranties are made with reference to an earlier dateoption, license or interest in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the Background Rights that is in conflict with the rights or licenses granted to the other Loan DocumentsParty under this Agreement; and it has not granted, or permitted to be attached, any lien, security interest, or other encumbrance with respect to the Obligations, the Liens securing Background Rights; and each Party warrants that it will not do any of the Obligationsforegoing during the Term.
(e) Each Party warrants that to its knowledge, it solely owns, and is unaware of any facts that have led it to suspect that it does not solely own the Background Rights existing as of the Effective Date.
(f) Each Party certifies that it has not utilized, in conducting any development activities or in the manufacture of any products, any person that at such time, to that Party’s knowledge, was debarred by any regulatory authority.
(g) Each Party warrants that to its knowledge, the Background Rights and the practice thereof do not infringe upon or violate the patent, copyright, trademark, trade secret or other proprietary rights of any third party, and each Party warrants that it has not received any communication or notice from any third party asserting any right, title or interest to the Background Rights.
(h) Each Party warrants that it has obtained, and during the Term will maintain, all licenses, authorizations, and permissions necessary under Applicable Law for meeting and performing its obligations under this Agreement and all such licenses, authorizations, and permissions are in full force and effect.
(i) Each Party warrants that any and all of its activities conducted in connection with this Agreement, including any and all activities relating to its use of the Background Rights, and the research, development and Commercialization of any Developed Products, will comply with all Applicable Laws.
(j) Each Party warrants that it will not engage in any activities that use the Background Rights in a manner that is outside the scope of the rights granted to it hereunder.
(k) Each Party warrants that it and its Affiliates and their respective employees and contractors have not and will not, directly or indirectly through third parties, pay, promise or offer to pay, or authorize the payment of, any money or give any promise or offer to give, or authorize the giving of anything of value to a public official or entity or other person for purpose of obtaining or retaining business for or with, or directing business to, any person, including the terms or conditions of Parties. Without any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject limitation to the availability of the remedy of specific performance foregoing, each Party and its Affiliates and their respective employees and contractors have not and will not directly or of indirectly promise, offer or provide any corrupt payment, gratuity, emolument, bribe, kickback, illicit gift or hospitality or other illegal or unethical benefit to a public official or entity or any other equitable remedy or relief to enforce any right thereunderperson.
Appears in 2 contracts
Samples: Collaboration Agreement, Collaboration Agreement (Zander Therapeutics, Inc)
Representations, Warranties and Covenants. The Borrower hereby represents (a) Each Party represents, warrants and warrants tocovenants to the other Party, with respect to itself, as follows:
(i) Such Party is a company duly organized, validly existing and in good legal standing as an independent legal person under the laws of the jurisdiction of its incorporation, and covenants has the corporate power and agrees withlawful authority to conduct its business in accordance with its business license, articles of association, company ordinance or other similar corporate constitutional documents;
(ii) Such Party has the Administrative Agent full right, power and authority to enter into this Contract and the Lenders that:Relevant Contracts to which it is a party, and to perform fully its obligations hereunder and thereunder;
A. The (iii) This Contract has been duly authorized, executed and delivered by such Party and, assuming the due authorization, execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true Party and correct in all material respects on approval by the Examination and as of the date of this Amendment as though made at and as of such dateApproval Authority, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it in accordance with its respective termsterms and pursuant to legal procedures;
(iv) Neither the execution of this Contract or any Relevant Contract, except nor the performance of such Party’s obligations hereunder or thereunder will conflict with, or result in a breach of or constitute a default under any provisions of the business license, resolutions of the shareholders’ meetings or Board, certificate of incorporation, articles of association, company ordinance or similar constitutional documents of such Party, as the enforcement case may be, or any law, regulation, rule, authorization or approval of any government agency or authority or any contract or agreement to which such Party is a party or by which it is bound;
(v) Such Party is, has been and, during the JV Term, will continue to be in compliance in all material respects with all applicable Law of its jurisdiction of incorporation and is not aware of any circumstances that would be a breach of any such Law;
(vi) As of the date of this Contract, there is no lawsuit, arbitration or legal, administrative or other proceeding or governmental investigation pending or, to the best knowledge of such Party, threatened against such Party with respect to the subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies matter of creditors generally this Contract or the application of principles of equity, whether that would negatively affect in any action at law way such Party’s ability to enter into or proceeding in equityperform this Contract, and if any such lawsuit, arbitration or legal, administrative or other proceeding or governmental investigation should come to the knowledge of such Party after the date of this Contract it shall promptly notify the other Party and provide the other Party with detailed information with respect to such matter;
(vii) All documents, statements and information of, or derived from, any governmental body in the possession of such Party relating to the transactions contemplated in this Contract have been disclosed to the other Party or will be promptly disclosed to the other Party to the extent that they first come to the attention to such Party after the date of this Contract, and no document previously provided by such Party to the other Party contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained therein not misleading; and
(viii) Such Party has procured all requisite permits and approvals from the relevant governmental departments to cooperate with the Company and the other Party in accordance with the provisions of this Contract and the Related Contracts to which it is a party and that such permits and approvals shall be valid and in full force and effect during the JV Term.
(b) Party A further represents and warrants to Party B that it has been duly issued all approvals, permits and certificates with respect to the Land, and Party A has the full legal right to transfer the right to use the Land to the Company as part of its contribution to the Registered Capital (as defined below). Party A shall deliver to Party B a copy of the valuation report in respect of the Land duly issued by an independent and reputable land appraiser registered in China as soon as practicable, but in any case no later than five (5) days after the date hereof.
(c) Party B undertakes to Party A that:
(i) for so long as the Parties own any equity interest in the Company, then Party B or its Affiliate shall not invest in or establish any other enterprise in China to engage in any businesses which are the same as the businesses of the Company as covered by the Business Scope and which compete with the Company except with the consent of Party A;
(ii) if Party B or any of its Affiliates wishes to invest in or establish an enterprise in China to engage in any businesses which are not covered by the Business Scope and which do not compete with the Company, Party B shall, and shall cause its Affiliate to, send a written proposal to Party A, which proposal shall state (x) its intention to invest and establish such a foreign-invested enterprise (“FIE”) in the PRC, (y) the basic terms of the proposed investment, and (z) an offer to Party A the first right to participate in the proposed investment as a 49% interest holder of such FIE. Party A shall have ninety (90) days to decide whether to participate and co-invest with Party B or Party B’s Affiliate (as the case may be) pursuant to the proposal. If Party A rejects such proposal or fails to respond in writing within such ninety (90) day period, Party B or its Affiliate, as appropriate, shall be free to establish the FIE, and if Party A accepts the proposal of Party B, Party A and Party B shall in good faith negotiate and agree upon the terms for the establishment of such FIE as soon as reasonably practicable; and
(iii) subject to the availability provisions under Section 3.2(c)(ii) above, if within five years after the Establishment Date, the Board has not passed any resolution to unanimously approve the expansion of the remedy Business Scope to include the manufacture and sale of specific performance electromechanical cables, Party B or its Affiliate shall thereafter have the right to establish any FIE in the PRC for the purpose of any other equitable remedy or relief to enforce any right thereundermanufacturing and selling electromechanical cables.
Appears in 2 contracts
Samples: Equity Joint Venture Contract, Equity Joint Venture Contract (1295728 Alberta ULC)
Representations, Warranties and Covenants. The Borrower hereby (a) Licensor represents, warrants, and covenants that: (i) it has the full and exclusive right and power to enter into this Agreement and grant the rights and licenses described herein; (ii) it is free to enter into this Agreement; (iii) Licensor shall, in connection with this Agreement, comply with all applicable laws, rules and regulations, including, but not limited to, those relating to anti-corruption, anti-money laundering and competition; and (iv) Licensor has not offered or paid, and will not offer or pay, directly or indirectly, (a) anything of value to any public official or candidate for political office, or any relative or agent thereof, for purposes of obtaining any official action or benefit relating in any way to this Agreement, or (b) any illegal commission or finder’s or referral fee. Licensor further represents and warrants tothat: (i) with respect to Licensed Products submitted by Licensee to Licensor for Clearance after the Effective Date, as well as for Licensed Products in use prior to the Effective Date to the extent the content in such games is used in accordance with all Third Party agreements and with respect to Trademarks, subject to such Trademarks having been approved through the Trademark process set forth in Section 1.3(i), Licensor has or will conduct reasonable due diligence in clearing the content for its intended use and state that within the scope of the approval issued that, other than as expressly stated in response to the submission, to the best of Licensor’s knowledge Licensor is not aware that the content infringes any Third Party rights; and (ii) that the Trademarks specifically approved through the Trademark Clearance process as set forth in Section 1.3(i), solely as approved by Licensor for use by Licensee under this license, whether or not registered, will not infringe Third Party rights in the United States, Canada, Mexico, Australia or Europe. Notwithstanding anything to the contrary contained herein, Licensee shall be responsible for securing all needed rights and approvals to Third Party content for which Licensor does not have the necessary rights to pass through to Licensee for use in Licensed Products, and covenants Licensee shall be solely responsible for paying all associated costs and agrees withexpenses, the Administrative Agent including but not limited to any guild or union fees, performing rights fees, music licenses, stock photography, video or clip rights, voice overs and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to fonts. For clarity, Licensed Products, or portions thereof, which any Loan Party is a party have not been submitted for Clearance in accordance with Section 1.3 or which have been duly authorized submitted for Clearance but which are used by all requisite action on Licensee other than as expressly approved in response to the part submission, are not included within the scope of such Loan Party.
B. The Licensor’s representations and warranties of non-infringement. Additionally, any Licensed Products, or portions thereof, which were designed or developed by Third Party developers (e.g., High 5 Games) or contain Third Party content (e.g., Third Party music) which are used by Licensee outside the Loan Parties contained scope of the written agreement pursuant to which the content was created or authorized (or in the Credit Agreement absence of being able to locate any such agreement), shall be at Licensee’s sole risk and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as use of such date, except to content shall not be within the extent (a) such scope of Licensor’s representations and warranties are made with reference to an earlier dateof non-infringement. Furthermore, in which case each such representation and warranty Licensee’s use of all Improvements shall be true and correct in all material respects as of such date only and at Licensee’s sole risk.
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan DocumentsLicensee represents, as applicable.
C. Both before warrants and after giving effect to covenants that: (i) this AmendmentAgreement has been duly authorized, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsexecuted, and hereby agrees not delivered by Licensee; (ii) it has the full power and authority to challenge enter into and perform its obligations hereunder; (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit iii) this Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory theretoLicensee, enforceable against it in accordance with its respective terms; (iv) the making of this Agreement does not violate any agreement, except as the enforcement may be subject right, or obligation existing between Licensee and any other person or entity; (v) all information furnished by Licensor to bankruptcyLicensee in connection with Licensee’s due diligence and compliance review process is complete and accurate; (vii) Licensee shall, insolvencyin connection with this Agreement, reorganizationcomply with all applicable laws, moratorium rules and similar laws affecting the rights regulations, including, but not limited to, those relating to anti-corruption, anti-money laundering and remedies competition; (viii) Licensee has not offered or paid, and will not offer or pay, directly or indirectly, (a) anything of creditors generally value to any public official or the application candidate for political office, or any relative or agent thereof, for purposes of principles of equity, whether obtaining any official action or benefit relating in any action at law way to this Agreement, or proceeding (b) any illegal commission or finder’s or referral fee; (ix) all Improvements and other materials used in equity, connection with the Licensed Property created by or for Licensee shall be created in accordance with Section 2.2 and subject to the availability not infringe or otherwise violate any Third Party’s rights; and (x) Licensee shall not incur any obligations or payments for which Licensor is responsible for Licensee’s use of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderLicensed Products.
Appears in 2 contracts
Samples: License Agreement (SciPlay Corp), License Agreement (SciPlay Corp)
Representations, Warranties and Covenants. The Borrower hereby represents and 6.1 FUMBI IP represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution (i) it is duly organized and existing under the laws of United Kingdom of Great Britain and Northern Ireland, validly existing and in good standing under the laws of its jurisdiction of incorporation, has all corporate powers required to carry on its business as now conducted, and is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary;
(ii) it has full power to execute and deliver this Agreement and to perform all the duties and obligations to be performed by it under this Agreement; and
(iii) execution, delivery and performance by FUMBI IP of this Amendment Agreement and the Loan Documents to which any Loan Party is a party provision of the services contemplated hereby are within FUMBI IP’s corporate powers and have been duly authorized by all requisite action necessary corporate actions on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit FUMBI IP. This Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, a valid and binding obligation agreement of each Loan Party signatory thereto, FUMBI IP enforceable against it FUMBI IP in accordance with its respective terms, except as the enforcement may be terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar other laws affecting the creditors’ rights generally and remedies of creditors generally or the application of general principles of equity) and does not contravene, whether in or constitute a default under, any action at provision of applicable law or proceeding in equity, and subject to the availability regulation or of the remedy of specific performance foundation deed or other documents under which FUMBI IP is organized or of any agreement, judgment, injunction, order, decree or other equitable remedy similar instrument binding upon FUMBI IP.
6.2 FUMBI Network represents, warrants and covenants that:
(i) it is duly organized and existing under the laws of the Slovak Republic, validly existing and in good standing under the laws of its jurisdiction of incorporation, has all corporate powers required to carry on its business as now conducted, and is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary;
(ii) it has full power to execute and deliver this Agreement and to perform all the duties and obligations to be performed by it under this Agreement;
(iii) execution, delivery and performance by FUMBI Network of this Agreement and the provision of the services contemplated hereby are within FUMBI Network’s corporate powers and have been duly authorized by all necessary corporate actions on the part of FUMBI Network. This Agreement constitutes a valid and binding agreement of FUMBI Network enforceable against FUMBI Network in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity) and does not contravene, or relief constitute a default under, any provision of applicable law or regulation or of the foundation deed or other documents under which FUMBI Network is organized or of any agreement, judgment, injunction, order, decree or other similar instrument binding upon FUMBI Network; and
(iv) FUMBI Network has no ownership interest in the user’s Cryptocurrencies and/or Private Keys.
6.3 You represent, warrant and covenant that:
(i) you are of legal age to enforce enter into a binding agreement and have full power to enter into this Agreement and to perform all the duties and obligations to be performed by you under this Agreement;
(ii) execution, delivery and performance by you of this Agreement are within your legal powers. This Agreement constitutes a valid and binding agreement of you enforceable against you in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity) and does not contravene, or constitute a default under, any right thereunderprovision of applicable law or regulation or any agreement, judgment, injunction, order, decree or other similar instrument binding upon you;
(iii) you have provided and will provide truthful, accurate and complete information to FUMBI as required for access to and use of the FUMBI Services;
(iv) you will not use FUMBI Services except for their intended purpose and not contrary to the general prohibitions regarding your FUMBI Account according to this Agreement; and
(v) you are familiar with the nature and workings of the technology behind the cryptocurrencies, and in particular, the irreversibility of transactions and the apparent risks associated with exposure to the cryptocurrencies.
Appears in 2 contracts
Samples: User Agreement, User Agreement
Representations, Warranties and Covenants. The Borrower hereby represents Trust, on its own behalf and warrants toon behalf of the Fund, and the Sponsor each hereby represents, warrants and covenants each of the following:
2.1 This Agreement has been, and agrees withat the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Trust, on its own behalf and on behalf of the Fund, and the Sponsor. This Agreement (including without limitation, the Administrative Agent and grant of a security interest under Section 7.6 below) does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Lenders that:
A. The execution and delivery of this Amendment and Fund’s prospectus or other organic document, agreement, judgment, order or decree applicable to the Loan Documents Fund to which any Loan Party the Trust or the Sponsor is a party have been duly authorized or by all requisite action on which the part of such Loan PartyFund or its Investments are bound.
B. The representations and warranties 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the Loan Parties contained in United States of America, the Credit Agreement Trust and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except Sponsor shall be deemed to have confirmed to the extent Custodian that the Fund has (a) such representations and warranties are made with reference all determinations required to an earlier datebe made by the Fund under Applicable Law, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the date hereof which were expressly permitted under custody and settlement infrastructure or the Loan Documents, as applicableservicing of securities in such jurisdiction.
C. Both before 2.3 The Trust and after giving the Sponsor shall safeguard and shall be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides them. In furtherance and not limitation of the foregoing, in the event the Trust and/or the Sponsor utilizes any on-line service offered by the Custodian, the Trust, the Sponsor and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Trust and/or the Sponsor uses any on-line or similar communications service made available by the Custodian, the Trust and the Sponsor shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Trust and/or the Sponsor relating to the services described in this Agreement, the Trust and/or the Sponsor will only use the software for the purposes for which the Custodian provided the software to the Trust and/or the Sponsor, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Trust and the Sponsor.
2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution of trades), the Trust, on its own behalf and on behalf of the Fund, and the Sponsor hereby (i) authorize BBH&Co. to complete such documentation as may be required or appropriate for the execution of the Instruction, and agree to be contractually bound to the terms of such documentation “as is” (subject to Section 9 of this Agreement) without recourse against BBH&Co.; (ii) represent, warrant and covenant that the Trust, on its own behalf and on behalf of the Fund, and the Sponsor have accepted and agreed to comply with all Applicable Law, terms and conditions to which the Fund’s Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledge and agree that BBH&Co. will not be responsible for the accuracy of any information provided to BBH&Co. by or on behalf of the Trust, Fund and/or the Sponsor, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4 below, represent, warrant and covenant that the Trust, on its own behalf and on behalf of the Fund, and/or Sponsor will not effect any sale, transfer or disposition of Investment(s) held in the BBH&Co.’s name by any means other than the issuance of an Instruction on behalf of the Fund by the Trust and/or Sponsor to this AmendmentBBH&Co.; (v) acknowledge that collective investment schemes (and/or their agent(s)) in which the Fund and/or Sponsor invests may pay to BBH&Co. certain fees (including without limitation, no Default or Event shareholder servicing and/or trailer fees) in respect of Default the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have occurred no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represent, warrant and be continuing.
D. As covenant that the Trust, on its own behalf and on behalf of the Amendment Closing Date Fund, and/or Sponsor will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (as defined below), no Loan Party has any grounds, and hereby agrees viii) represent that the Fund is not to challenge a “Plan” (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and which term includes (1) employee benefit plans that are subject to the availability Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the remedy US Internal Revenue Code of specific performance 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan; (ix) undertake to inform BBH&Co. and to keep the same updated as to its status under ERISA or Section 4975 of the Code, each as amended, of the beneficial investor to the Investment, and as to any tax withholding or benefit to which an Investment may be subject; and (x) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund and/or Sponsor for which the Fund does not have sufficient cash on deposit with BBH&Co.
2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund and/or Sponsor, and the Fund and/or Sponsor requests that BBH&Co. provide the Fund and/or Sponsor with the capability to place orders and execute trades in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund and/or Sponsor hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund and/or Sponsor (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian to grant a limited power of attorney to the Fund, Sponsor or their designated agent to enable the Fund and/or Sponsor to so execute, (iii) agrees to ensure that any instructions issued by the Fund and/or Sponsor or their designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund and/or Sponsor also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as broker or introducing broker on behalf of the Fund or Sponsor, (2) BBH&Co. is not receiving compensation in connection with the Fund and/or Sponsor’s execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor or each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any other equitable remedy or relief such Investment executed directly by the Fund and/or Sponsor.
2.5 The Sponsor is, and will continue to enforce any right thereunderbe until the termination of this Agreement, duly authorized to enter into this Agreement on behalf of the Trust and the Fund, to bind the Trust and the Fund in connection with the obligations hereunder, and to otherwise perform the terms herein.
Appears in 1 contract
Samples: Custodian Agreement (United States Commodity Index Funds Trust)
Representations, Warranties and Covenants. The Borrower Each Party hereby represents represents, warrants and warrants tocovenants to the other Party as of the Effective Date, as follows:
8.1.1 Such Party (i) has the power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and covenants and agrees with, (ii) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement. This Agreement has been duly authorized by all requisite action executed and delivered on the part behalf of such Loan Party.
B. The representations Party and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it and is in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity.
8.1.2 Such Party is not aware of any pending or threatened litigation (and has not received any communication relating to any pending or threatened litigation) that alleges that such Party’s activities related to this Agreement have violated, or that by conducting the activities as contemplated in equitythis Agreement such Party would violate, any of the intellectual property rights of any Person (after giving effect to the license grants in this Agreement).
8.1.3 All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such Party in connection with the execution and delivery of this Agreement and the performance of its obligations under this Agreement have been obtained (other than such consents, approvals and authorizations that the Parties will obtain in the course of performing their obligations under this Agreement).
8.1.4 The execution and delivery of this Agreement the performance of such Party’s obligations hereunder (i) do not conflict with or violate in any material way any requirement of applicable Law, (ii) do not conflict with or violate any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such Party, and subject to the availability of the remedy of specific performance (iii) do not conflict with, violate, or of breach or constitute a default or require any other equitable remedy consent under, any contractual obligation or relief to enforce any right thereundercourt or administrative order by which such Party is bound.
Appears in 1 contract
Samples: Clinical Development and Collaboration Agreement (Regado Biosciences Inc)
Representations, Warranties and Covenants. (a) Of Each Party. The Borrower Partnership, the Retiring Partner, and the Continuing Partners each hereby represents and warrants to, to and covenants and agrees with, the Administrative Agent and the Lenders to each other Party that:
A. The (i) Neither the execution and nor the delivery of this Amendment and Agreement, the Loan Documents incurrence of the obligations herein set forth, the consummation of the transactions herein contemplated, nor the compliance with the terms of this Agreement will conflict with, or result in a breach of, any of the terms, conditions, or provisions of, or constitute a default under, any bond, note, or other evidence or indebtedness or any contract, indenture, mortgage, deed of trust, loan agreement, lease, or other agreement or instrument to which any Loan such Party is a party have been duly authorized or by which such Party may be bound.
(ii) Such Party has the right, power, legal capacity, and authority to execute and enter into this Agreement and to execute all requisite action other documents and perform all other acts as may be necessary in connection with the performance of this Agreement.
(iii) No approval or consent not heretofore obtained by any person or entity is necessary in connection with the execution of this Agreement by such Party or the performance of such Party's obligations under this Agreement.
(iv) Such Party has received independent tax and legal advice from attorneys of his choice with respect to the advisability of executing this Agreement.
(v) Such Party has made such investigation of the facts pertaining to this Agreement, and all of the matters pertaining thereto, as he deems necessary.
(vi) Except as expressly provided herein, no person has made any statement or representation to such Party regarding any fact relied upon by such Party in entering into this Agreement and each Party specifically does not rely upon any statement, representation, or promise of any other person in executing this Agreement.
(vii) Such Party relies on the part finality of such Loan Partythis Agreement as a material factor inducing his execution of this Agreement, and the obligations under this Agreement.
B. The representations and warranties (viii) Such Party will not take any action which would interfere with the performance of this Agreement by any other Party or which would adversely affect any of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and rights provided for herein.
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan DocumentsAdditional Representation, as applicable.
C. Both before Warranty, and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As Covenant of the Amendment Closing Date (as defined below)Retiring Partner. The Retiring Partner hereby represents and warrants to and covenants to each other Party that the Retiring Partner owns the Redemption Interest free and clear of any and all liens, no Loan Party has any groundsclaims, encumbrances, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documentadverse equities.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby represents and warrants toAs a material inducement to Lessor entering into this Agreement with Lessee, Lessee represents, warrants, and covenants and agrees with, the Administrative Agent and the Lenders thatas follows:
A. The execution (1) If Lessee is a corporation, or a limited liability company, Lessee is duly organized and delivery validly existing and is in good standing under the laws of the state of its incorporation, and is duly qualified and licensed to do business as a foreign corporation and is in good standing in those jurisdictions where such qualifications are necessary to authorize Lessee to carry on its present business and operations, and to own its properties or to perform its obligations thereunder;
(2) If Lessee is a partnership, Lessee is duly organized and validly existing under the partnership laws of its state of domicile and is duly authorized in any foreign jurisdiction where such qualification is necessary to authorize Lessee to carry on its present business and operations and to own its properties and to perform its obligations thereunder; (3) Lessee has full power, authority, and legal right to execute, deliver, and carry out as Lessee the terms and provisions of this Amendment Agreement, and the Loan Documents to which any Loan Party other necessary documents in connection with this transaction; (4) If Lessee is a party have been duly authorized by all requisite action on the part corporation or limited liability company, Lessee's execution, delivery, and performance of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit this Agreement and the other Loan Documents are true documents and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except agreements referred to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsherein, and hereby agrees the performance of its obligations under this Agreement have all been authorized by all necessary corporate or company action, do not to challenge (require the approval or to allege or to pursue any matterconsent of stockholders, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any trustee or holders of any indebtedness or obligation of Lessee and will not violate any law, governmental rule, regulation or order binding upon Lessee or any provision of any indenture, mortgage, contract, or other equitable remedy agreement to which Lessee is a party or relief by which it is bound or to enforce which it is subject, and will not violate any right thereunder.provision of the Certificate or Articles of Incorporation, Bylaws, any preferred stock agreement, Articles of Organization or Operating Agreement of Lessee;
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby A. Fund Party represents and warrants to, and covenants and agrees with, the Administrative Agent to Oppenheimer that Fund Party and the Lenders that:
A. The execution and delivery of persons executing this Amendment and the Loan Documents to which any Loan Party is a party have been Agreement on its behalf are duly authorized and empowered to execute and deliver this Agreement on behalf of Fund Party and that, when duly executed and delivered by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit each party, this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes constitute the legal, valid and binding obligation of each Loan Party signatory theretoFund Party, enforceable against it in accordance with its respective terms, except subject, as the enforcement may be subject to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting the creditors' rights and remedies to general equity principles.
X. Xxxxxxxxxxx represents and warrants that: (i) it and the persons executing this Agreement on its behalf are duly authorized and empowered to enter into this Agreement and that, when duly executed and delivered by each party, this Agreement shall constitute the legal, valid and binding obligation of creditors generally or Oppenheimer, enforceable in accordance with its terms; (ii) the application activities of principles Oppenheimer contemplated by this Agreement comply with all provisions of equityfederal and state securities laws applicable to such activities; (iii) Oppenheimer has obtained such registrations and qualifications as are necessary to permit it to perform its obligations hereunder; (iv) the arrangements provided for in this Agreement will be disclosed to Xxxxxxxxxxx'x Clients, whether in any action at law or proceeding in equityto the extent required by law; (v) it is, and subject shall remain for the term of this Agreement, duly registered as a broker-dealer under the Securities Exchange Act of 1934, as amended; (vi) it is, and shall remain for the term of this Agreement, duly registered as a broker-dealer under the laws of each state or territory of the United States in which Oppenheimer makes shares of any Fund available to its customers; (vii) it is, and shall remain for the term of this Agreement, a member in good standing of the National Association of Securities Dealers, Inc. ("NASD"); and (viii) all of its personnel involved with the carrying out of this Agreement requiring registration under federal or state securities laws or under the rules of the NASD are and will remain appropriately registered during the term of this Agreement to the availability extent required by such laws or rules.
C. Fund Party and Oppenheimer each agree to comply with all provisions of federal and state laws, rules and regulations, including the remedy Employee Retirement Income Security Act of specific performance 1974, as amended ("ERISA"), applicable to its respective activities under this Agreement. Oppenheimer represents and warrants that the receipt of compensation under this Agreement by Oppenheimer will not violate any federal or of any other equitable remedy state laws, rules or relief to enforce any right thereunderregulations, including ERISA.
Appears in 1 contract
Samples: Services Agreement (Seligman Lasalle Real Estate Fund Series Inc)
Representations, Warranties and Covenants. The Borrower hereby represents SECTION 2.1. Of Lessee. Lessee makes the following representations, warranties and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatcovenants:
A. Lessee is an incorporated municipality of the State of Wyoming, duly organized and validly existing under the constitution and laws of the State of Wyoming, with full power and legal right to enter into this Agreement and perform its obligations hereunder. Lessee’s actions in making and performing this Agreement have been duly authorized by its governing body or other appropriate official approval and will not violate or conflict with any law or governmental rule or regulation, or any mortgage, agreement, instrument or other document by which Lessee or its properties are bound. Lessee further represents, covenants and warrants that all requirements have been met and procedures have occurred in order to ensure the enforceability of the Agreement and Lessee has complied with all public bidding and other statutory requirements as may be applicable to Lessee in the authorization, execution, delivery and performance of this Agreement;
B. Lessee has obtained all necessary licenses, permits and approvals, if any, required by all governing bodies or agencies having jurisdiction over the acquisition, installation and operation of the Equipment;
C. During the Term of this Agreement, Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its legal existence;
D. During the Term of this Agreement, the Equipment will be used by Lessee only for the purpose of performing one or more essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority and will not be used in a trade or business of any person or entity other than the Lessee; Lessee does not intend to sell said Equipment or said Agreement or to otherwise dispose of said Equipment during the term of the Agreement; and Lessee will not receive any monies, funds, or other “proceeds” as a result of the Agreement;
E. The Equipment will have a useful life in the hands of the Lessee that is substantially in excess of the initial Term and all Renewal Terms;
F. The Equipment is, and during the Initial Term and all Renewal Terms will remain, personal property and when subjected to use by the Lessee under this Agreement, will not be or become a fixture;
G. By all proper action Lessee has appropriated moneys sufficient to pay all Rental Payments payable during the Initial Term. During the Initial Term and any Renewal Terms, Lessee will annually provide Lessor with current financial statements, budgets, proof of appropriation for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee to continue this Agreement as may be reasonably requested by Lessor or its assignee;
H. The execution and delivery of this Amendment Agreement, and compliance with the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action provisions hereof, will not conflict with or constitute on the part of such Loan PartyLessee a violation of, breach of, or default under any constitutional provision, statute, resolution, bond indenture or other financing agreement or any other agreement or instrument to which Lessee is a party or by which Lessee is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Lessee or any of its activities or properties;
I. There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or threatened against or affecting Lessee, wherein an unfavorable decision, ruling or finding would materially and adversely affect the transactions contemplated hereunder or which in any way would adversely affect the validity or enforceability of this Agreement;
J. The Governing Body of Lessee represents that the reasonably anticipated amount of qualified tax-exempt obligations which have been and will be issued by Lessee does not exceed $10,000,000 for the 2021 calendar year and designates the Agreement to be a “qualified tax-exempt obligation” pursuant to Section 265 (b) (3) of the Internal Revenue Code of 1986, as amended.
B. The representations and warranties K. During the Term of this Agreement, Lessee will not make or permit any use of the Loan Parties contained in Equipment or the Credit proceeds under this Agreement and the other Loan Documents are true and correct in all material respects which if such use had been reasonably expected on and as of the date of this Amendment as though made at and as the Agreement would have caused the Agreement to be an “arbitrage bond” within the meaning of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As Section 148 of the Amendment Closing Date (as defined below), no Loan Party has any groundsCode, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityapplicable regulations promulgated thereunder, and subject to further covenants that it will observe and not violate the availability requirements of the remedy of specific performance or of Code Section 148 and any other equitable remedy or relief to enforce any right thereunderapplicable regulations.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby represents and (a) KPE represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatas follows:
A. (i) KPE has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Amendment Agreement and the Loan Documents to which any Loan Party is a party consummation of the transactions contemplated hereby have been duly authorized by all requisite necessary corporate action on the part of such Loan Party.
B. The representations KPE. This Agreement has been duly executed and warranties of the Loan Parties contained in the Credit Agreement delivered by KPE and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory theretoKPE, enforceable against it KPE in accordance with its respective terms, except as the enforcement may be subject to limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and similar insolvency laws and by other laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to except as may be limited by the availability of the remedy of specific performance equitable remedies.
(ii) No consent, approval, order or authorization of any third party (including any federal, state or local governmental authority) is required by or with respect to KPE to validly execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(iii) KPE is an accredited investor as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and it is acquiring the Common Stock for its own account for investment and not with a view to the distribution thereof or with any present intention of distribution or selling any of the Common Stock except in compliance with the Securities Act. KPE understands and agrees that the Common Stock has not been registered under the Securities Act and the Common Stock may be sold only if registered pursuant to the provisions thereunder or if an exemption from registration is available. The Common Stock issued pursuant to this Agreement shall be stamped or otherwise imprinted with a legend to such effect.
(iv) KPE agrees to work with Pivot Rules in identifying and seeking to ensure Year 2000 compliance of the Site.
(b) Pivot Rules represents and warrants as follows:
(i) Pivot Rules has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Pivot Rules. This Agreement has been duly executed and delivered by Pivot Rules and constitutes the legal, valid and binding obligation of Pivot Rules, enforceable against Pivot Rules in accordance with its terms, except as may be limited by bankruptcy, reorganization, moratorium, fraudulent conveyance and insolvency laws and by other laws affecting the rights of creditors generally and except as may be limited by the availability of equitable remedy remedies.
(ii) No consent, approval, order or relief authorization of any third party (including any federal, state or local governmental authority) is required by or with respect to enforce any right thereunderPivot Rules to validly execute and deliver this Agreement and to consummate the transactions contemplated hereby.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower 11.1 Each of Genelabs and Tanabe hereby represents represents, warrants and warrants tocovenants to the other party the following:
(a) It is a corporation duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation, and covenants in each state where a failure to be in good standing would have a material adverse effect on the operations of such party.
(b) To the best of its knowledge, it has sufficient legal and/or beneficial title under its intellectual property rights, or sufficient rights licensed from Third Parties, to grant the rights and agrees withlicenses provided hereunder.
(c) All of its Affiliates, employees, officers, Third Party contractors and consultants (and, solely with respect to Tanabe, Tanabe Sublicensees) have executed agreements requiring assignment to the Administrative Agent party of all inventions made during the course of and as a result of their association with such party and obligating the individual to maintain as confidential the Confidential Information of such party; except where any failure by a party to obtain such agreements would not have a materially adverse impact on the rights and licenses granted to the other party under this Agreement.
(d) To the best of its knowledge, it has all necessary right, power and authority to enter into this Agreement and the Lenders that:performance of its obligations hereunder will not violate any other agreement to which it is a party.
A. The (e) It has taken all corporate action necessary to authorize the execution and delivery of this Amendment Agreement.
(f) It has not entered, nor shall it enter, into any agreement or arrangement with a Third Party that is in conflict with the rights granted to the other party under this Agreement.
11.2 Genelabs represents and warrants to Tanabe the following that, as of the Effective Date: License and Collaboration Agreement (Prasterone) ** CONFIDENTIAL TREATMENT REQUESTED
(a) it owns or controls all rights, title and interest in and to the Genelabs Patents and Genelabs Know-How, that it has full right and authority to license the rights granted to Tanabe hereunder and that, to the best of its knowledge without actual investigation, each patent within the Genelabs Patents is valid and enforceable.
(b) it owns or possesses all right, title and interest in and to the Genelabs Patents and the Loan Documents Genelabs Know-How free and clear of all encumbrances, and has the right to convey to Tanabe, in accordance with this Agreement, the unencumbered licenses set forth herein. Genelabs warrants and represents as of the Effective Date that it and its Affiliates have not granted any interest in Genelabs Patents or Genelabs Know-How, are not party to any agreement (written or oral) or any other arrangement and/or not subject to any order, judgment or decision from any competent governmental authority, in all cases which would conflict with this Agreement or the rights granted herein.
(c) to the best of its knowledge without actual investigation, no intellectual property rights of Genelabs licensed to Tanabe under this Agreement (including, without limitation, the Genelabs Know- How and Genelabs Patents) are being infringed by any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Third Party.
B. The representations (d) to the best of its knowledge without actual investigation, the practice of Genelabs Patents and warranties Genelabs Know- How by Tanabe in accordance with and as contemplated by the parties in this Agreement in the Territory does not infringe the patent rights of any Third Party.
(e) to the best of its knowledge without actual investigation, it has made available to Tanabe all material negative information in its control as of the Loan Parties contained in Effective Date that may reasonably be expected to have a material adverse effect on: (i) Genelabs' clinical development program for the Credit Agreement Prasterone Product for SLE indications or (ii) the manufacture or supply of API or Prasterone Product for SLE indications by or for Genelabs.
(f) The paper copies of the NDA No. 21-239 and EMEA/H/C/531 made available to Tanabe prior to the other Loan Documents Effective Date are true and correct in all material respects on and as copies of the date of this Amendment as though made at NDA No. 21-239 and as of such dateEMEA/H/C/531, except respectively, filed by or for Genelabs with the FDA and the EMEA, respectively.
11.3 Tanabe represents and warrants to Genelabs the extent following:
(a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or Without limiting any of Tanabe's obligations set forth in Sections 5.1 and 5.2, Tanabe shall use its best efforts to calculate and provide sales forecasts in each Commercialization Plan which represent Tanabe's diligent, good faith and commercially reasonable estimates of projected sales of Tanabe Products, consistent with the other Loan Documents, the Obligations, the Liens securing any goal of the Obligations, or any maximizing Net Sales of the terms or conditions of any Loan DocumentTanabe Products.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: License and Collaboration Agreement (Genelabs Technologies Inc /Ca)
Representations, Warranties and Covenants. The Borrower and Parent hereby represents represent, warrant and warrants to, and covenants and agrees with, covenant to Xxxxx Fargo the Administrative Agent and following (which shall survive the Lenders that:
A. The execution and delivery of this Amendment No. 6), the truth and accuracy of which are continuing conditions of the Loan Documents making of Loans to which any Loan Party is a party Borrower:
(a) this Amendment No. 6 and each other agreement or instrument to be executed and/or delivered in connection herewith (collectively, together with this Amendment No. 6, the "Amendment Documents") have been duly authorized authorized, executed and delivered by all requisite necessary action on the part of such Borrower and Parent and, if necessary, their respective stockholders and/or members, as the case may be, and the agreements and obligations of Borrower and Parent contained herein and therein constitute the legal, valid and binding obligations of Borrower and Parent, enforceable against them in accordance with their terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought;
(b) the execution, delivery and performance of the Amendment Documents (a) are all within Borrower's and Parent's corporate or limited liability company powers (as applicable), (b) are not in contravention of law or the terms of Borrower's or Parent's certificate or articles of organization or formation, operating agreement, by-laws or other organizational documentation, or any indenture, agreement or undertaking to which Borrower or Parent is a party or by which Borrower, Parent or its or their property is bound and (c) shall not result in the creation or imposition of any lien, claim, charge or encumbrance upon any of the Collateral, except in favor of Xxxxx Fargo pursuant to the Loan Party.Agreement and the Financing Agreements as amended hereby;
B. The (c) all of the representations and warranties of set forth in the Loan Parties contained in the Credit Agreement and the other Loan Documents Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the date of this Amendment hereof, as though if made at and as of such dateon the date hereof, except to the extent (a) any such representations and warranties are representation or warranty is made with reference to an earlier as of a specified date, in which case each such representation and or warranty shall be have been true and correct in all material respects as of such date only and date;
(bd) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this AmendmentAmendment No. 6, no Default or Event of Default shall have occurred and be continuing.
D. As exists as of the date of this Amendment Closing Date No. 6; and
(as defined below)e) no action of, no Loan Party has or filing with, or consent of any groundsgovernmental or public body or authority, including, without limitation, any filing with the U.S. Patent and Trademark Office, and hereby agrees not to challenge (no approval or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or consent of any other equitable remedy party, is required to authorize, or relief to enforce any right thereunderis otherwise required in connection with, the execution, delivery and performance of this Amendment No. 6.
Appears in 1 contract
Samples: Loan and Security Agreement (Pacific Ethanol, Inc.)
Representations, Warranties and Covenants. The Borrower Each Credit Party signatory hereto hereby represents and represents, warrants to, and covenants and agrees with, the Administrative to Agent and each Lender as follows:
(a) the Lenders that:
A. The execution execution, delivery and delivery performance by each of the Credit Parties signatory hereto of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on necessary action, and do not and will not:
(i) contravene the part terms of any of that Person’s Organizational Documents;
(ii) conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Credit Party is a party or any order, injunction, writ or decree of any Governmental Authority to which such Credit Party or its Property is subject; or
(iii) violate any material Requirement of Law in any material respect;
(b) such Credit Party has the power and authority to execute, deliver and perform its obligations under this Amendment and the Loan Party.Agreement, as amended hereby;
B. The (c) this Amendment constitutes the legal, valid and binding obligations of each such Credit Party which is a party hereto enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;
(d) after giving effect to this Amendment and the transactions contemplated hereby, each of the representations and warranties of the Loan Parties contained in the Credit Loan Agreement and the other Loan Documents are is true and correct in all material respects on and as of the date of this Amendment hereof as though if made at and as of such date, on the date hereof (except to the extent (a) such for representations and warranties are made with reference to an earlier that speak as of a specific date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and specific date); and
(be) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of exists or would result from the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.transactions contemplated by this Amendment.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Service Provider represents, warrants and warranties are made covenants that it has and will continue to maintain necessary facilities, equipment and personnel to perform its services hereunder and to comply with reference to an earlier dateapplicable laws, in which case each such representation rules and warranty shall be true regulations including the maintenance and correct in preservation of all material respects as of such date only required records and registrations.
(b) inaccuracies resulting from transactions prior Each Party represents, warrants and covenants that (i) it has and will continue to maintain the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before requisite authority to enter into this Agreement and after giving effect to perform its obligations hereunder and (ii) this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and legally binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective termsterms and conditions.
(c) Each Party represents, warrants and covenants that (i) it possesses all permits, licenses or related government authorities to enter into this Agreement and perform its obligations hereunder and (ii) neither its entry into this Agreement nor its performance of its obligations hereunder will violate any statute, regulation, rule, injunction, order, ruling or restriction of any government, governmental agency or court to which it is or may become subject.
(d) Each Party represents and warrants that any “Nonpublic Personal Information”, as defined in the Securities and Exchange Commission’s Regulation S-P (“Regulation S-P”), or Part 40 of the Office of the Comptroller of the Currency Regulation (“OCC Regulation”), both promulgated under the Grxxx-Xxxxx-Xxxxxx Xct (the “Act”), disclosed hereunder is for the specific purpose of permitting Service Provider to perform the services set forth in this Agreement. Each party covenants that, with respect to such information, it will comply with the OCC Regulation or Regulation S-P and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent necessary to carry out the services set forth in this Agreement or as otherwise permitted by OCC Regulation or Regulation S-P under the enforcement may be subject to bankruptcyAct.
(e) Each Party represents, insolvency, reorganization, moratorium warrants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and covenants that (i) it is a financial institution subject to the availability USA Patriot Act of 2001 and the Bank Secrecy Act of 1970 (collectively, the “AML Acts”), which require among other things, that financial institutions adopt compliance programs to guard against money laundering, and (ii) it is in compliance and will continue to comply with the AML Acts and any applicable anti-money laundering rules of self-regulatory organizations, including Rule 3011 of the remedy National Association of specific performance Securities Dealers, in all relevant aspects.
(f) Service Provider represents, warrants and covenants that it will comply with the terms of the prospectus and Statement of Additional Information (“SAI”) of each Fund and will use its best efforts to impose and collect Fund redemption fees in accordance with the terms set forth in each Fund’s prospectus and SAI.
(g) Service Provider represents, warrants and covenants that it has adopted and implemented, and will maintain internal controls reasonably designed to prevent instructions received from Clients on a given Business Day (as defined in the applicable Fund’s prospectus) after the close of trading and calculation of a Fund’s net asset value (as set forth in that Fund’s prospectus and SAI) from being aggregated with the order for net purchases, net redemptions or net exchanges of any other equitable remedy or relief to enforce any right thereunderShares for that Business Day.
Appears in 1 contract
Samples: Shareholder Servicing Agreement (Cavanal Hill Funds)
Representations, Warranties and Covenants. The Borrower hereby represents and 8.1 Each party represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents that the following statements are true and correct in all material respects on and as of the date of this Amendment as though made at Agreement and as acknowledges that the other party has relied upon the completeness and accuracy of such daterepresentations, except to the extent warranties and covenants in entering into this Agreement:
(a) such representations it has the corporate capacity to enter into this Agreement and warranties are made with reference to an earlier date, in which case perform each such representation and warranty shall be true and correct in all material respects as of such date only and its obligations hereunder; and
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documentsit has duly authorized, as applicable.
C. Both before executed and after giving effect to delivered this Amendment, no Default or Event of Default shall have occurred Agreement and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit this Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, a legally valid and binding obligation of each Loan Party signatory thereto, it enforceable against it in accordance with its respective terms, terms except as the such enforcement may be subject to limited by applicable bankruptcy, insolvency, reorganization, moratorium insolvency and similar other laws of general application affecting the enforcement of creditors' rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to general equitable principles.
8.2 SCM further represents, warrants and covenants to the availability Company that the following statements are true and correct as of the remedy date of specific this Agreement and acknowledges that the Company has relied upon the completeness and accuracy of such representations, warranties and covenants in entering into this Agreement:
(a) SCM has duly authorized, executed and delivered the IMTV Agreement and the IMTV Agreement constitute a legally valid and binding obligation of it enforceable against it in accordance with its terms except as such enforcement may be limited by applicable bankruptcy, insolvency and other laws of general application affecting the enforcement of creditors' rights and subject to general equitable principles;
(b) SCM and its Affiliates have not granted and, during the term of this Agreement, will not grant any rights or licenses to the whole or any part of the IMTV Agreement, and, there exist no facts, agreements or other documents by which any of SCM or its Affiliates is bound that would conflict with SCM's obligations or the Company's rights under this Agreement;
(c) SCM has or shall obtain all required licenses, consents, approvals and permits from any person necessary to perform its obligations under this Agreement and each will otherwise comply with all applicable statutes, laws, rules, regulations and industry standards with respect to the performance of its obligations under this Agreement;
(d) SCM has performed all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in default of the IMTV Agreement. Each of the IMTV Agreement is in full force and effect, unamended, and there exists no material default or event of material default or event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any other equitable remedy event or relief condition, would become a material default or event of material default under the IMTV Agreement; and
(e) SCM shall not amend, terminate, breach or waive any of its rights under the IMTV Agreement without the prior written consent of the Company or its Affiliates.
8.3 The Company further represents, warrants and covenants to enforce any right thereunder.SCM that the following statements are true and correct as of the date of this Agreement and acknowledges that SCM has relied upon the completeness and accuracy of such representations, warranties and covenants in entering into this Agreement:
(a) The Company has or shall obtain all required licenses, consents,
Appears in 1 contract
Samples: Advertising Services Agreement (Xinhua Finance Media LTD)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations Each Party represents, warrants and warranties are made covenants that: (i) it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with reference any other person, corporation or other entity; (ii) it has full power and authority under applicable law and has taken all action necessary to an earlier dateenter into and perform this Agreement; and (iii) it shall comply with all applicable federal and state laws and regulations, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and including securities laws.
(b) inaccuracies resulting from transactions prior Service Provider further represents, warrants and covenants that the financial arrangements provided for in this Agreement will be disclosed to the date hereof which were expressly permitted Clients.
(c) It is recognized that Company has certain obligations (including verifying the source of funds and identifying investors) under the Loan DocumentsUSA Patriot Act and the Bank Secrecy Act, the rules and regulations adopted thereunder, Office of Foreign Assets Control regulations, rules of the Financial Industry Regulatory Authority. (“FINRA”) and other applicable anti-money laundering laws (collectively, the “Anti-Money Laundering Laws”). Upon request, Service Provider shall assist Company in monitoring transactions in accordance with the Anti-Money Laundering Laws. If necessary for Company’s compliance with the Anti-Money Laundering Laws, Service Provider shall, upon Company’s request and at Company’s expense, provide Company with documentation evidencing the identity of a Client or a Client’s plan participant who is the beneficial owner of Shares. Service Provider represents that it has an anti-money laundering program consisting of internal policies, procedures and controls reasonably designed to prevent it from being used for money laundering or financing of terrorist activities and to achieve compliance with the Anti-Money Laundering Laws. Service Provider further represents that it is obtaining necessary documentation and information from Clients or Plan participants as applicablemay be required under Section 326 of the USA Patriot Act, and verifying and screening the identity of each Client or Plan participant, if required, to ensure with reasonable certainty of such Client or Plan participant’s identity and source of funds (including OFAC screening of accounts and wire payments). Upon Company’s written request, Service Provider shall provide Company with a copy of Service Provider’s anti-money laundering policies, procedures and controls (or a summary thereof).
C. Both before (d) Company further represents, warrants and after giving effect to covenants that: (i) this Amendment, no Default or Event of Default Agreement shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, constitute a valid and binding obligation of Company and each Loan Party signatory theretoFund, separately and not jointly, enforceable against it them in accordance with its respective terms; (ii) if it is required to be registered as a broker/dealer, it is and shall remain a broker/dealer registered with the Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act and a member in good standing of the FINRA; (iii) the Fund’s advisers are duly registered as an investment advisers under the 1940 Act or are exempt from the requirements of such registration, the Funds are duly registered as investment companies under the 1940 Act, and the Shares of the Funds are duly registered under the Securities Act of 1933, as amended (“Securities Act”); (iv) the Shares of each of the Funds are registered or otherwise qualified for sale to the public in all states of the United States except as the enforcement may be subject disclosed in writing by Company to bankruptcy, insolvency, reorganization, moratorium Service Provider on at least thirty days’ notice; (v) it and similar laws affecting each of the rights and remedies of creditors generally or the application of principles of equity, whether in Funds shall comply with any action at law or proceeding regulation of applicable regulatory authorities including, without limitation, the Securities Act, the Exchange Act , the 1940 Act and the rules and regulations thereunder, as well as the applicable Rules of Fair Practice of FINRA and the laws of the states and other jurisdictions in equity, and subject which such Funds are registered or otherwise qualified for sale to the availability public; and (vi) any advertising or sales literature that it provides to Service Provider with respect to the Funds shall have satisfied all requirements of law and regulation including, without limitation, any requirements of filing with the remedy of specific performance SEC, FINRA or of any other equitable remedy or relief to enforce any right thereunderentity.
(e) EXCEPT FOR THE EXPRESS WARRANTIES OF SERVICE PROVIDER SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Appears in 1 contract
Samples: Service Agreement (GMO Series Trust)
Representations, Warranties and Covenants. The Borrower (a) Finder represents that finding investors for companies is not part of Finder’s ordinary business activities, that it is not a registered broker-dealer and that it will limit its services to introducing the Company to the Qualified Investors set forth on Exhibit A only. Each party hereby acknowledges that: (i) all negotiations concerning the terms of the Equity Financing (including price, percentage ownership and other terms) will take place directly between the Company and the Qualified Investors; and (ii) Finder is not acting as agent or principal in the Equity Financing negotiations or transactions.
(b) Finder hereby covenants that it will not, either alone or through its agents: (i) hold any funds or securities in connection with the Equity Financing; (ii) make any offers to sell equity, debt or assets of the Company; (iii) make any representations respecting the business or affairs of the Company to any Qualified Investor or person or entity, whether in connection with the Equity Financing or otherwise, unless such representation has been previously and expressly authorized by the Company in writing; (iv) make or engage in any general solicitation or otherwise act in any manner that would make unavailable to the Company an exemption under Rule 506 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), for the issuance of the Company’s securities in connection with the Equity Financing, if any; or (v) take any action that would not comply with the applicable laws and regulations relating to the services to be rendered to the Company, including without limitation the Securities Act and Regulation S thereunder and the broker-dealer provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(c) Finder represents and warrants to, to the Company that it has the full legal right to enter into and covenants perform this Agreement and agrees withthat its entry into and performance of this Agreement does not and will not violate any fiduciary or other duty it may have to any other person.
(d) Finder acknowledges that it is responsible for its own compliance with state and federal securities laws including the Securities Act, the Administrative Agent Exchange Act and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Partyrules promulgated thereunder.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents (e) Finder will contact only potential investors with whom it has a substantial preexisting relationship that evidences that such potential investors are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default sophisticated or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date otherwise accredited investors (as defined belowunder Regulation D of the Securities Act). In furtherance thereof, no Loan Party has any groundsFinder shall obtain from each potential investor an accredited investor questionnaire in a form approved by the Company.
(f) Finder agrees to only furnish information and materials to the Qualified Investors that are provided or approved by the Company, and hereby Finder agrees to not to challenge (or to allege or to pursue any matter, cause or claim arising under or misrepresent the Company’s business and prospects in discussions with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan DocumentQualified Investors.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower 17.1 Each party hereby represents and warrants tothat it has the right, power and covenants authority to execute, deliver and agrees with, the Administrative Agent perform its obligations under this Agreement and the Lenders that:other agreements relating to the transaction contemplated under this Agreement (the “Transaction Documents”).
A. 17.2 Each party hereby represents that this Agreement and the other Transaction Documents are a legal and valid obligation binding upon such party and enforceable against such party in accordance with their respective terms. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Transaction Documents does not, and the consummation of the transaction contemplated hereby will not, violate, conflict with or result in a breach of any provision of or constitute a default under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien, security interest, charge or encumbrance upon, the patent rights and know-how licensed hereunder.
17.3 Corixa hereby represents and warrants that:
(i) Exhibit A sets forth a complete list of all patents and patent applications that are true and correct in all material respects on and owned or controlled by Corixa as of the date Effective Date that are necessary [***] exercise of the rights and licenses granted by Corixa to Medicis hereunder;
(ii) Corixa owns, or has the right, power and authority to license to Medicis on the terms and conditions of this Amendment as though made at Agreement, the Corixa Patents and Corixa Know-How free and clear of any liens, restrictions on use or encumbrances of any nature whatsoever;
(iii) Corixa has not admitted in writing that any claim of an issued, unexpired patent included within the Corixa Patents is invalid or unenforceable by the holder thereof by reissue, disclaimer or otherwise;
(iv) Corixa has [***];
(v) Corixa has not granted to any Third Party or Corixa Affiliate any rights that conflict with [***] the rights granted by Corixa to Medicis under this Agreement;
(vi) To the best of Corixa’s knowledge, the Corixa Patents are valid and enforceable and the manufacture, sale or use of the Licensed Product on the terms and conditions of this Agreement would not, if sold on the date hereof, infringe any patent rights of any Third Party or Corixa Affiliate [***];
(vii) As of the Effective Date, no patent or patent application within the Corixa Patents is involved in or, to the best of Corixa’s knowledge, is threatened to be involved in, [***];
(viii) Corixa has disclosed to Medicis all patent applications of which Corixa is aware as of such datethe Effective Date, except that cover [***];
(ix) To the best of Corixa’s knowledge, no Corixa Patent infringes or has been alleged to infringe any patent or other proprietary right of any Third Party or Corixa Affiliate, [***];
(x) Exhibit B sets forth all of the extent (a) such representations and warranties are made agreements entered into by Corixa with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects a third party as of such date only the Effective Date pursuant to which Corixa has acquired intellectual property included in the Corixa Patents or the Corixa Know-How (“Corixa Third Party License Agreements”) that are necessary [***];
(xi) Exhibit C sets forth all of the agreements entered into by Corixa with a Third Party or Corixa Affiliate as of the Effective Date pursuant to which Corixa has licensed the Corixa Patents or the Corixa Know-How (“Corixa Third Party Collaboration Agreements”);
(xii) Each of the agreements listed in Exhibit B is [***];
(xiii) [***].
17.4 Corixa hereby covenants that:
(i) Corixa will [***];
(ii) Corixa will [***];
(iii) Except in accordance with the terms of this Agreement, Corixa will not [***];
(iv) Corixa will [***];
(v) Corixa will not grant during the term of this Agreement to any third party any rights that conflict with the rights granted by Corixa to Medicis under this Agreement;
(vi) Corixa will [***]; and
(vii) Corixa will take all actions which it considers reasonably necessary to [***].
17.5 Medicis hereby represents and (b) inaccuracies resulting warrants that it is not subject to any obligations that would prevent it from transactions entering into or performing its obligations under this Agreement.
17.6 Medicis hereby covenants that Medicis is aware of and will comply with the Sections of the Corixa Third Party Licensor Agreements as agreed to in good faith in writing by the parties prior to the date hereof which were expressly permitted under the Loan Documents, as applicableEffective Date.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: Development, Commercialization and License Agreement (Medicis Pharmaceutical Corp)
Representations, Warranties and Covenants. The Borrower hereby (a) Each of the Parties, severally and not jointly, represents and warrants toto each other Party that the following statements are true, correct, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and complete as of the date of this Amendment as though made at and as of hereof (or, if later, the date that such dateParty first became or becomes a Party) but, except solely with respect to the extent Company, subject to any limitations or approvals arising from, or required by, the commencement of the Chapter 11 Cases:
(ai) such representations it is validly existing and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted good standing under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As laws of the Amendment Closing Date (as defined below), no Loan Party has any groundsjurisdic t ion of its organization, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit this Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the is a legal, valid valid, and binding obligation of each Loan Party signatory theretosuch Party, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to limited by bankruptcy, insolvency, reorganization, moratorium and moratorium, or other similar laws affecting the relating to or limiting creditors’ rights and remedies of creditors generally or by equitable principles relating to enforceability;
(ii) except as expressly provided in this Agreement or as may be required for disclosure by the application of principles of equitySecurities and Exchange Commission, whether in no material consent or approval of, or any action at law registration or proceeding in equityfiling with, any other Person is required for it to carry out the Restructuring contemplated by, and subject perform its obligations under, this Agreement;
(iii) except as expressly provided in this Agreement, it has all requisite organizational power and authority to enter into this Agreement and to carry out the availability Restructuring contemplated by, and perform its obligations under, this Agreement;
(iv) the execution and delivery by it of this Agreement, and the performance of its obligations hereunder, have been duly authorized by all necessary organizational action on its part;
(v) it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement;
(vi) the execution, delivery, and performance by such Party of this Agreement does not and will not (A) violate any provision of law, rule, or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, (B) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any material debt for borrowed money to which it or any of its subsidiaries is a party; except, in the case of this clause (B), for any such conflict, breach or default as would not reasonably be expected to result in a material adverse effect on the ability of such Party to consummate the Restructuring in a timely manner or for such Party to perform any of its material obligations under this Agreement, or (C) violate any order, writ, injunction, decree, statute, rule, or regulat io n; and
(vii) it has not entered into a definitive written agreement with respect to an Alternative Proposal as of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderdate first written above.
Appears in 1 contract
Samples: Restructuring Support Agreement
Representations, Warranties and Covenants. The Borrower hereby 8.1. NIKE represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders to Licensee that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent : (a) such representations it and/or its Affiliates are the sole and warranties are made with reference exclusive owners of all right, title and interest in and to an earlier datethe Licensed Xxxx in the Core Jurisdictions, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior it has the valid right to license the Licensed Xxxx for purposes of this Agreement.
8.2. Each Party represents and warrants to the date hereof which were expressly permitted under other Party that:
(a) It is validly organized and existing, and in good standing under, the Loan Documentslaws of its jurisdiction of formation, as applicableand that it has full and unrestricted power and authority to enter into, and to perform its obligations under, this Agreement.
C. Both before (b) The execution, delivery and after giving effect performance of its obligations under this Agreement will not violate any agreements or obligations it may have to this Amendment, no Default any other Person or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), result in any case based upon acts breach or omissions violation of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement applicable law by which it or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documentits assets is bound.
E. Each of the Loan Documents constitutes the legal, valid (c) This Agreement has been duly and validly executed and delivered by it and is binding obligation of each Loan Party signatory thereto, upon and is enforceable against it in accordance with its respective terms, except as the enforcement enforceability may be subject to limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium and similar reorganization or other laws of general application relating to or affecting the rights and remedies of creditors generally and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies.
8.3. Licensee will provide consumers with a warranty on the application Licensed Products which is at least equivalent to the warranty which Licensee provides on similar products not bearing the Licensed Xxxx.
8.4. To the extent any Affiliate of principles NIKE owns any right, title and interest in and to the Licensed Xxxx, NIKE will: (a) cause any such Affiliate to comply with the terms of equitythis Agreement, whether including with respect to the granting of rights in the Licensed Xxxx to Licensee, (b) not permit any such Affiliate at any time during or after the Term to contest or challenge any provision of this Agreement, and (c) take all necessary action to ensure that any NIKE Change of Control that results in such Affiliate becoming a Person unaffiliated with NIKE will not affect, reduce, or result in any action at law diminution of, Licensee’s rights hereunder.
8.5. NIKE will not abandon the Licensed Xxxx in any Core Jurisdiction without first obtaining the prior written consent of Licensee, which consent will not be unreasonably withheld or proceeding delayed; provided, however, that NIKE’s foregoing obligation will not apply unless Licensee: (a) uses the Licensed Xxxx in equitysuch Core Jurisdiction as may be required by such Core Jurisdiction’s laws relating to trademark rights; and (b) upon NIKE’s request, cooperates with NIKE in preparing and filing renewals, statements of use, and subject to other certificates and/or documents as required by the availability trademark offices in Core Jurisdictions. NIKE will not expressly abandon trademark registrations or applications for the Licensed Xxxx in any jurisdiction in which the Licensed Xxxx is, as of the remedy Agreement Effective Date, registered, or in which an application for such Licensed Xxxx has been, as of specific performance the Effective Date, filed, without first obtaining the prior written consent of Licensee, which consent will not be unreasonably withheld or of any other equitable remedy or relief to enforce any right thereunderdelayed.
Appears in 1 contract
Samples: Trademark License Agreement (Performance Sports Group Ltd.)
Representations, Warranties and Covenants. The Borrower (a) To induce WayPoint to execute and deliver this Forbearance Agreement, each of NYTEX Holdings, NYTEX Acquisition, New Xxxxxxx and FDF hereby represents and represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution i. such Party has the power, and delivery of has been duly authorized by all requisite action, to execute and deliver this Amendment Forbearance Agreement and the Loan Documents other documents and agreements executed and delivered in connection herewith to which it is a party;
ii. this Forbearance Agreement has been duly executed by such Party and the other documents and agreements executed and delivered in connection herewith to which any Loan Party is a party have been duly authorized executed and delivered by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.;
C. Both before and after giving effect to iii. this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Forbearance Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes is the legal, valid and binding obligation of such Party and the other documents and agreements executed or delivered in connection herewith to which such Party is a party are the legal, valid and binding obligations of such Party, in each Loan Party signatory thereto, case enforceable against it such Party in accordance with its their respective terms, except as the enforcement such enforceability may be subject to limited by any applicable bankruptcy, insolvency, reorganization, moratorium and or similar laws of general applicability affecting the enforcement of creditors’ rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to general equitable principles which may limit the availability right to obtain equitable remedies;
iv. the execution, delivery and performance of this Forbearance Agreement and the other documents and agreements executed and delivered in connection therewith do not and will not (i) violate any law, rule, regulation or court order to which such Party is subject or (ii) conflict with or result in a breach of the remedy certificate or articles of specific performance incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents) of such Party or any other agreement or instrument to which it is party or by which the properties of such Party is bound;
v. as of the Forbearance Effective Date, other than the Current Events of Default, no Default or Event of Default has occurred or is continuing under any WayPoint Purchase Document;
vi. such Party shall immediately, but in any event within twenty four (24) hours, provide written notice to WayPoint of any notice from or action by any creditor (other equitable remedy than WayPoint) regarding an event or relief circumstance that may adversely impact performance of such Party under this Forbearance Agreement;
vii. Without limiting the rights of WayPoint or WayPoint’s legal and financial advisors under the WayPoint Purchase Documents, such Party shall, upon reasonable notice, at reasonable times and for reasonable duration, (a) give WayPoint’s legal and financial advisors reasonable access, during normal business hours, to enforce such Party’s books and records, offices, properties, officers, employees, accountants, auditors, counsel and other representatives; (b) furnish to WayPoint’s legal and financial advisors such financial, operating and property-related data and other information as such persons may reasonably request; and (c) request that its employees and legal and financial advisors use commercially reasonable efforts to cooperate with WayPoint’s legal and financial advisors in respect of the aforementioned clauses (a) and (b);
viii. such Party shall provide Harbor View Advisors, LLC, (“HVA”), (a) reasonable access, during normal business hours, to such Party’s books and records, offices, properties, officers, employees, accountants, auditors, counsel and other representatives; (b) financial, operating and property-related data and other information as HVA may reasonably request; and (c) request that its employees and legal and financial advisors use commercially reasonable efforts to cooperate with HVA in respect of the aforementioned clauses (a) and (b);
ix. commencing on the Forbearance Effective Date, such Party shall in good faith reasonably cooperate with HVA to prepare NYTEX Acquisition, New Xxxxxxx and FDF for a Transaction, (as that term is defined in the engagement letter between FDF and HVA dated July 19, 2011, hereinafter the “HVA Engagement Letter”);
x. by no later than October 15, 2011, such Party shall (a) establish an electronic data room accessible from the Internet with all relevant documents and data necessary for the Transaction and (b) provided all information necessary for the preparation of offering materials by HVA for a Transaction;
xi. such Party agrees to pay HVA’s reasonable fees and expenses, including, without limitation, HVA’s “break-up” fee if NYTEX Holdings consummates the proposed recapitalization of NYTEX Holdings, NYTEX Acquisition, New Xxxxxxx and FDF that would, among other things, fund the purchase of the WayPoint Securities contemplated by Sections 3(a)(xiv) and 3(a)(xv) hereof;
xii. such Party agrees to provide WayPoint with five (5) Business Days’ prior notice of and an opportunity to consult regarding their intent to (a) undertake any right thereunder.transaction outside the ordinary course of business or
Appears in 1 contract
Samples: Forbearance Agreement (NYTEX Energy Holdings, Inc.)
Representations, Warranties and Covenants. The Borrower Each Party hereby represents represents, warrants and warrants tocovenants to the other Party as of the Effective Date, as follows:
8.1.1 Such Party (i) has the power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and covenants and agrees with, (ii) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement. This Agreement has been duly authorized by all requisite action executed and delivered on the part behalf of such Loan Party.
B. The representations Party and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it and is in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity.
8.1.2 Such Party is not aware of any pending or threatened litigation (and has not received any communication) that alleges that such Party’s activities related to this Agreement have violated, or that by conducting the activities as contemplated in equitythis Agreement such Party would violate, any of the intellectual property rights of any Person (after giving effect to the license grants in this Agreement).
8.1.3 All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such Party in connection with the execution and delivery of this Agreement and the performance of its obligations under this Agreement have been obtained (other than such consents, approvals and authorizations that the Parties will obtain in the course of performing their obligations under this Agreement).
8.1.4 The execution and delivery of this Agreement the performance of such Party’s obligations hereunder (i) do not conflict with or violate in any material way any requirement of applicable Law, (ii) do not conflict with or violate any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such Party, and subject to the availability of the remedy of specific performance (iii) do not conflict with, violate, or of breach or constitute a default or require any other equitable remedy consent under, any contractual obligation or relief to enforce any right thereundercourt or administrative order by which such Party is bound.
Appears in 1 contract
Samples: Exclusive License, Development and Commercialization Agreement (Aratana Therapeutics, Inc.)
Representations, Warranties and Covenants. The Borrower Issuer hereby represents and represents, warrants to, and covenants and agrees with, to the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and Collateral Manager as follows as of the date hereof:
(i) The Issuer has been duly incorporated and is validly existing under the laws of this Amendment as though made at the Cayman Islands, has the full corporate power and as authority to own its assets and the obligations proposed to be owned by it and included in the Collateral and to transact the business in which it is presently and proposed to be engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under the Operative Documents would require, such datequalification, except for failures to be so qualified, authorized or licensed that would not in the extent aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(ii) The Issuer has full corporate power and authority to execute, deliver and perform the Operative Documents and all obligations required under the Operative Documents and has taken all necessary action to authorize the Operative Documents on the terms and conditions hereof and thereof and the execution, delivery and performance of Operative Documents and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other person including, without limitation, shareholders and creditors of the Issuer, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Issuer in connection with the Operative Documents or the execution, delivery, performance, validity or enforceability of the Operative Documents or the obligations imposed upon it hereunder or thereunder. Each Operative Document to which the Issuer is a party has been executed and delivered by the Issuer (by its duly authorized director) and constitutes the valid and legally binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (a) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such representations and warranties are made with reference laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only the Issuer and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicablegeneral equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
C. Both before (iii) The execution, delivery and after giving effect to performance of this AmendmentAgreement, no Default the other Operative Documents and the documents and instruments required hereunder and thereunder will not violate any provision of any existing law or Event of Default shall have occurred and be continuing.
D. As of regulation binding on the Amendment Closing Date (as defined below)Issuer, no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lenderorder, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the effectivenessIssuer or of any mortgage, genuinenessindenture, validitylease, collectibility contract or enforceability of other agreement, instrument or undertaking to which the Credit Agreement Issuer is a party or by which the Issuer or any of the other Loan Documentsits assets is or may be bound, the Obligationsviolation of which would have a material adverse effect on the business, operations, assets or financial condition of the Liens securing Issuer or its ability to perform its obligations under this Agreement or the Indenture, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the Obligationsprovisions of any such mortgage, indenture, lease, contract or any other agreement, instrument or undertaking (other than the lien of the terms Indenture).
(iv) The Issuer is not an “investment company” required to register under the Investment Company Act.
(v) The Offering Circular did not (as of the date thereof) and did not (as of the Closing Date) contain any untrue statement of a material fact or conditions omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that no representation or warranty is made as to statements in or omissions from the information concerning the PredecessorO riginal Collateral Manager provided by it for the inclusion in the Offering Circular, which information is contained solely under the section entitled “Collateral Manager” therein.
(vi) The Issuer agrees to deliver a true and complete copy of each amendment, supplement or waiver of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject Operative Document to the availability of the remedy of specific performance Collateral Manager as promptly as practicable after its adoption or of any other equitable remedy or relief to enforce any right thereunderexecution.
Appears in 1 contract
Samples: Collateral Management Agreement
Representations, Warranties and Covenants. (a) The Borrower Issuer hereby represents represents, warrants and warrants covenants to the Collateral Advisor as follows as of the date hereof:
(i) The Issuer has been duly incorporated and is validly existing under the laws of the Cayman Islands, has the full corporate power and authority to own its assets and the obligations proposed to be owned by it and included in the Collateral and to transact the business in which it is presently and proposed to be engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under the Operative Documents would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(ii) The Issuer has full corporate power and authority to execute, deliver and perform the Operative Documents and all obligations required under the Operative Documents and has taken all necessary action to authorize the Operative Documents on the terms and conditions hereof and thereof and the execution, delivery and performance of Operative Documents and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other person including, without limitation, shareholders and creditors of the Issuer, and no license, permit, approval or authorization of, exemption by, notice or report to, and covenants and agrees or registration, filing or declaration with, any governmental authority is required by the Administrative Agent and Issuer in connection with the Lenders that:
A. The execution and delivery Operative Documents or the execution, delivery, performance, validity or enforceability of this Amendment and the Loan Operative Documents or the obligations imposed upon it hereunder or thereunder. Each Operative Document to which any Loan Party the Issuer is a party have has been executed and delivered by the Issuer (by its duly authorized by all requisite action director) and constitutes the valid and legally binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (a) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Issuer and (b) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iii) The execution, delivery and performance of this Agreement, the other Operative Documents and the documents and instruments required hereunder and thereunder will not violate any provision of any existing law or regulation binding on the part Issuer, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets is or may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or its ability to perform its obligations under this Agreement or the Indenture, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking (other than the lien of the Indenture).
(iv) The Issuer is not an “investment company” required to register under the Investment Company Act.
(v) The Offering Circular does not (as of the date hereof) and will not (as of the Closing Date) contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that no representation or warranty is made as to statements in or omissions from the Offering Circular described in Section 10(a)(ii) hereof.
(vi) The Issuer agrees to deliver a true and complete copy of each amendment, supplement or waiver of any Operative Document to the Collateral Advisor as promptly as practicable after its adoption or execution.
(b) The Collateral Advisor hereby represents, warrants and covenants to the Issuer as follows as of the date hereof:
(i) The Collateral Advisor is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware and has full power and authority as a limited liability company to own its assets and to transact the business in which it is currently engaged and is duly qualified as a limited liability company and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of this Agreement would require, such qualification, except for those jurisdictions in which the failure to be so qualified, authorized or licensed would not have a material adverse effect on the business, operations, assets or financial condition of the Collateral Advisor or on the ability of the Collateral Advisor to perform its obligations hereunder, or on the validity or enforceability of this Agreement and the provisions of the Indenture applicable to the Collateral Advisor.
(ii) The Collateral Advisor is registered as an investment adviser under the Advisers Act and is in compliance with all filing and other requirements thereunder.
(iii) The Collateral Advisor has the necessary limited liability company power and authority to execute, deliver and perform this Agreement and all obligations required hereunder and under the provisions of the Indenture applicable to the Collateral Advisor and has taken all necessary limited liability company action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Indenture applicable to the Collateral Advisor. No consent of any other person, including, without limitation, members or creditors of the Collateral Advisor, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Collateral Advisor in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement or the obligations required hereunder or under the terms of the Indenture applicable to the Collateral Advisor. Each Operative Document to which the Collateral Advisor is a party has been executed and delivered by the Collateral Advisor (by its duly authorized officer), and constitutes the valid and legally binding obligation of the Collateral Advisor enforceable against the Collateral Advisor in accordance with its terms, subject, as to enforcement, to (a) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Collateral Advisor and (b) general equitable principles (whether enforceability of such Loan Partyprinciples is considered in a proceeding at law or in equity).
B. (iv) The representations execution, delivery and warranties performance of this Agreement and the terms of the Loan Parties Indenture applicable to the Collateral Advisor and the documents and instruments required hereunder or under such terms of the Indenture will not violate any provision of any existing law or regulation binding on the Collateral Advisor, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Collateral Advisor, or the Governing Instruments of, or any securities issued by, the Collateral Advisor or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Collateral Advisor is a party or by which the Collateral Advisor or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets or financial condition of the Collateral Advisor or any of its subsidiaries, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking.
(v) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Collateral Advisor, threatened that, if determined adversely to the Collateral Advisor, would have a material adverse effect upon the business, operations, assets or financial condition of the Collateral Advisor or upon the performance by the Collateral Advisor of its duties under this Agreement.
(vi) The section entitled “Collateral Advisor” contained in the Credit Agreement Offering Circular, as of the date thereof does not, and as of the other Loan Documents are true Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vii) As of the Closing Date, all Collateral Debt Securities and correct Eligible Investments purchased by the Issuer (i) satisfy the definition of “Collateral Debt Security” or “Eligible Investment”, as applicable, (ii) satisfy all of the terms and conditions applicable to such purchases as set forth herein or in all the Indenture and (iii) satisfy the Investment Guidelines.
(viii) As of the Closing Date, there has been no event or development that could reasonably be expected to result in a material respects adverse effect on the financial condition or operations of the Collateral Advisor.
(ix) All information with regard to the Collateral Advisor and its investment management methodology, personnel and trading record set forth in the marketing materials titled “Kleros Real Estate CDO II: A CDO Managed by: Strategos Capital Management, LLC,” dated July 2006 and in the Offering Circular under the section titled “Collateral Advisor” is, as of the date of this Amendment as though made at the information, true, accurate and as of such datecomplete in every material respect.
(c) The Collateral Advisor makes no representation, except express or implied, with respect to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default Issuer or Event of Default shall have occurred and be continuing.
D. As any portion of the Amendment Closing Date Offering Circular other than as set forth in clause (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documentb)(vi) above.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: Collateral Advisory Agreement (Alesco Financial Inc)
Representations, Warranties and Covenants. (a) Of Each Party. The Borrower Partnership, the Retiring Partner, and the Continuing Partners each hereby represents and warrants to, to and covenants and agrees with, the Administrative Agent and the Lenders to each other Party that:
A. The (i) Neither the execution and nor the delivery of this Amendment and Agreement, the Loan Documents incurrence of the obligations herein set forth, the consummation of the transactions herein contemplated, nor the compliance with the terms of this Agreement will conflict with, or result in a breach of, any of the terms, conditions, or provisions of, or constitute a default under, any bond, note, or other evidence or indebtedness or any contract, indenture, mortgage, deed of trust, loan agreement, lease, or other agreement or instrument to which any Loan such Party is a party have been duly authorized or by which such Party may be bound.
(ii) Such Party has the right, power, legal capacity, and authority to execute and enter into this Agreement and to execute all requisite action other documents and perform all other acts as may be necessary in connection with the performance of this Agreement.
(iii) No approval or consent not heretofore obtained by any person or entity is necessary in connection with the execution of this Agreement by such Party or the performance of such Party's obligations under this Agreement.
(iv) Such Party has received independent tax and legal advice from attorneys of his choice with respect to the advisability of executing this Agreement.
(v) Such Party has made such investigation of the facts pertaining to this Agreement, and all of the matters pertaining thereto, as he deems necessary. (PAGE)
(vi) Except as expressly provided herein, no person has made any statement or representation to such Party regarding any fact relied upon by such Party in entering into this Agreement and each Party specifically does not rely upon any statement, representation, or promise of any other person in executing this Agreement.
(vii) Such Party relies on the part finality of such Loan Partythis Agreement as a material factor inducing his execution of this Agreement, and the obligations under this Agreement.
B. The representations and warranties (viii) Such Party will not take any action which would interfere with the performance of this Agreement by any other Party or which would adversely affect any of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and rights provided for herein.
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan DocumentsAdditional Representation, as applicable.
C. Both before Warranty, and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As Covenant of the Amendment Closing Date (as defined below)Retiring Partner. The Retiring Partner hereby represents and warrants to and covenants to each other Party that the Retiring Partner owns the Redemption Interest free and clear of any and all liens, no Loan Party has any groundsclaims, encumbrances, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Documentadverse equities.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: Retirement of Partnership Interest (Equus Gaming Co Lp)
Representations, Warranties and Covenants. The Borrower Each party hereby represents and warrants torepresents, warrants, and covenants to the other party as of the Effective Date as follows:
(a) such party (i) has the power and agrees with, the Administrative Agent authority and the Lenders that:
A. The legal right to enter into the Agreement and perform its obligations hereunder, and (ii) has taken all necessary action on its part required to authorize the execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as performance of the date of its obligations hereunder; provided however, that this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty Agreement shall not be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding unless and until executed and acknowledged by a duly authorized representative of LLUMC. The Agreement has been duly executed and delivered on behalf of such party and constitutes a legal, valid, binding obligation of each Loan Party signatory thereto, such party and is enforceable against it in accordance with its respective terms, except as the enforcement may be terms subject to the effects of bankruptcy, insolvency, reorganization, moratorium and similar or other laws of general application affecting the enforcement of creditor rights and remedies judicial principles affecting the availability of creditors generally or the application of specific performance and general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding in equity.
(b) such party is not aware of any pending or threatened litigation (and has not received any communication) that alleges that such party’s activities related to this Agreement have violated, and subject to or that by conducting the availability activities as contemplated herein such party would violate, any of the remedy of specific performance or intellectual property rights of any other equitable remedy person.
(c) all necessary consents, approvals and authorizations of all governmental authorities and other persons or relief entities required to enforce be obtained by such party in connection with the Agreement have been obtained.
(d) the execution and delivery of the Agreement and the performance of such party’s obligations hereunder (i) do not conflict with or violate any right thereunderrequirement of applicable law or regulation or any provision of articles of incorporation, bylaws or limited partnership agreement of such party, as applicable, in any material way, and (ii) do not conflict with, violate, or breach or constitute a default or require any consent under, any contractual obligation or court or administrative order by which such party is bound.
(e) such party will comply at all times with the provisions of the Generic Drug Enforcement Act of 1992 and will upon request certify in writing to the other that none of it, its employees, or any person providing services to such party in connection with the collaboration contemplated by this Agreement have been debarred under the provisions of such Act.
(f) true and correct copies of all filings, correspondence and minutes of meetings with the FDA have been provided to Myriad.
(g) true and correct copies of all preclinical and clinical trial studies, data and results have been provided to Myriad.
(h) to the best of Licensor’s knowledge, the Licensor Patents and Licensor Know-How do not infringe and will not infringe any Third Party patent rights.
Appears in 1 contract
Samples: License and Collaboration Agreement (Myriad Genetics Inc)
Representations, Warranties and Covenants. The Borrower hereby 7.1 Except for the rights of HPI and the Government of the United States of America ("Government") as set forth below and except as may otherwise be set forth in this Agreement, CNS represents and warrants tothat
(a) CNS is the exclusive licensee of the Patent Rights and is entitled to grant the rights and licenses specified herein, subject to the terms and conditions of the HPI License Agreement;
(b) CNS has not entered into any agreement granting any rights, interest or claim in or to any Patent Rights, if any, to any Third Party that conflicts with the rights granted to ALI pursuant to this Agreement;
(c) to CNS’s knowledge, the patents encompassed by the Patent Rights are, or upon issuance will be, valid, and enforceable patents and no Third Party is infringing any such Patent Rights or has challenged the scope, validity, or enforceability of such patents or Patent Rights;
7.2 ALI understands that the Patent Rights may have been developed under a funding agreement with the Government and, if so, that the Government may have certain rights relative thereto. This Agreement is explicitly made subject to the Government's rights under any such agreement and any applicable law or regulation. To the extent that there is a conflict between any such agreement, applicable law or regulation and this Agreement, the terms of such Government agreement, applicable law or regulation shall prevail. CNS agrees that Licensed Products used or sold in the United States, to the extent such Licensed Products were developed under a funding agreement with the Government, will be manufactured substantially in the United States, unless a written waiver is obtained in advance from the Government. CNS will promptly advise ALI if such a written waiver is requested and/or obtained.
7.3 ALI, by execution hereof, acknowledges, covenants and agrees withthat ALI has not been induced in any way by CNS or employees thereof to enter into this Agreement, the Administrative Agent and the Lenders further represents that ALI is entering into this Agreement voluntarily.
7.4 Each Party represents and warrants that:
A. The execution (a) it is duly organized and delivery validly existing under the Laws of its state of incorporation, and has full corporate power and authority to enter into this Amendment Agreement and to carry out the provisions hereof;
(b) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the Loan Documents to which any Loan Party is a party have person executing this Agreement on its behalf has been duly authorized to do so by all requisite action on the part of such Loan Party.corporate action;
B. The representations (c) this Agreement is legally binding upon it and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms; that the execution, except as the enforcement delivery and performance of this Agreement by it does not conflict with any Agreement, instrument or understanding, oral or written, to which it is a party or by which it may be subject bound, nor violate any material law or regulation of any governmental entity having jurisdiction over it; and
(d) it has not granted, and will not grant during the term of the Agreement, any right to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting any Third Party that would conflict with the rights and remedies of creditors generally granted to the other Party hereunder; that it has (or will have at the application of principles of equity, whether in any action at law or proceeding in equitytime performance is due) maintained, and subject will maintain, and keep in full force and effect, all agreements, permits and licenses necessary to perform its obligations hereunder; and in complying with the availability terms and conditions of this Agreement and carrying out any obligations hereunder, it will comply (and it will ensure that its subcontractor’s comply) with all applicable laws, regulations, ordinances, statutes, and decrees or proclamations of all governmental entities having jurisdiction over such Party.
7.5 ALI represents that if within 18 months of the remedy Effective Date ALI is party to any merger, share acquisition or other combination transaction, the membership interests issued to CNS will represent no less than 1.05% on a fully diluted basis of specific performance or of any other equitable remedy or relief to enforce any right thereunderthe surviving entity.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower (a) Each Party ------------------------------------------ hereby represents and warrants toto the other Party that, as of the date hereof and covenants as of the Closing Date:
(i) Such Party is duly organized and agrees withvalidly existing under the laws of the jurisdiction of its organization and has all requisite power and authority to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(ii) Such Party has all the necessary corporate power and all legal authority required to enter into, the Administrative Agent execute and deliver this Agreement and to perform fully such Party's obligations hereunder.
(iii) The execution of this Agreement by such Party and the Lenders that:
A. The execution and delivery consummation of this Amendment and the Loan Documents to which any Loan Party is a party transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of such Loan Party.
B. The representations (iv) This Agreement has been duly executed and warranties delivered by such Party and constitutes the valid and legally binding obligation of the Loan Parties contained such Party enforceable against such Party in the Credit Agreement accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and the other Loan Documents are true similar laws relating to or affecting creditors' rights generally from time to time in effect and correct to general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in all material respects on a proceeding in equity or at law, and that, as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendmenthereof, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date Governmental Approval (as defined belowherein), no Loan Party has any groundsother than the exemption relief of the Commission under Rule 14e-5(d) of the Exchange Act, and hereby agrees not to challenge (no approval or to allege or to pursue consent of any matter, cause or claim arising under or other Person is required in connection with respect to), in any case based upon acts or omissions the execution and delivery by such Party of this Agreement and the consummation and performance by such Party of the Administrative Agent transactions contemplated hereby, other than such approvals and consents which failure to obtain would not have a material adverse effect upon such Party acting as a Party hereunder or on any Lenderother transaction contemplated hereby.
(v) The execution and delivery of this Agreement, the effectiveness, genuineness, validity, collectibility or enforceability consummation of the Credit transactions contemplated hereby and the performance by such Party of its obligations under this Agreement in accordance with its terms and conditions will not conflict with or any result in a breach or violation of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of, or constitute (or with notice or lapse of time or both would constitute) a default (or give rise to any right of termination, cancellation or acceleration) under, as applicable, (x) the certificate of incorporation, charter, articles of association, By-Laws or other constitutive document of such Party, as applicable, (y) any instrument, contract, bond, note, mortgage, indenture, license or other agreement to which such Party is a party or by or to which such Party or such Party's assets or properties are bound or subject or (z) any statute or regulation of any Loan Documentapplicable law or any order, judgment, injunction or decree of any court other than, in the case of clauses (x) and (y), conflicts, breaches, violations or defaults which would not in the aggregate have a material adverse effect upon such Party acting as a Party.
E. Each (b) The Trustee hereby represents and warrants to ARAMARK that, as of the Loan Documents constitutes the legal, valid date hereof and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy Closing Date, (i) the Trustee is the sole owner of specific performance or the Repurchase Shares for the sole benefit of the participants and beneficiaries of the 401(k) Plans and has full power, right and authority to sell and transfer the Repurchase Shares to ARAMARK and (ii) the Repurchase Shares are free and clear of any other equitable remedy liens, charges, claims, restrictions or relief to enforce encumbrances of any right thereunderkind, including, without limitation, pledges.
Appears in 1 contract
Samples: Stock Repurchase Agreement (Aramark Worldwide Corp)
Representations, Warranties and Covenants. The Borrower hereby represents and represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatto Fidopharm as follows:
A. (a) The execution and delivery by ** of this Amendment Agreement and the Loan Documents to which any Loan Party is a party performance by ** of its obligations hereunder have been duly authorized by all requisite necessary corporate action on the part of such Loan Party**, and do not conflict with the terms of any other contract, agreement, arrangement or understanding to which ** is a party.
B. The representations (b) Except as set forth herein, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of ** in connection with the valid execution, delivery and warranties performance of this Agreement.
(c) is and will be in compliance through the Loan Parties contained in the Credit term of this Agreement and the other Loan Documents are true and correct in all material respects on and with all Laws applicable to its performance under this Agreement.
(d) There is no action or proceeding pending or threatened against ** that questions the validity of this Agreement or any action taken by ** in connection with the execution of this Agreement.
(e) In regards to intellectual property:
(i) has not knowingly infringed any Third Party patent rights in developing Products. In the event that ** becomes aware of any Third Party patents rights being infringed, or potentially being infringed, by the development, manufacture or commercialization of a Product, ** shall notify Fidopharm of such infringement or potential infringement within twenty-four (24) hours of gaining such knowledge.
(ii) as of the date Effective Date, there are no pending proceedings in any court or arbitration, administrative or other tribunal which are concerned with the validity or ownership of this Amendment any of the Patents or Know-How. Without derogation from the foregoing, there are no oppositions, revocation, cancellation, invalidation or rectification proceedings pending in relation to any of the Patents or Know-How in any court. No Third Party has notified ** or any ** Affiliate of its intention to bring any such proceedings.
(iii) has not and no ** Affiliate has received any written complaints or threats and there are no pending proceedings or claims, alleging that the exploitation of the Patents or Know-How infringe or would infringe the intellectual property rights of any Person;
(iv) Details of the Patents are set out in Schedule 2 and all the details are correct. Without derogation from the generality of the foregoing, the Patents are subsisting and all applications for Patents indicated in Schedule 2 as though made at pending are pending. The legal and as beneficial owner or applicant for registration of each of the Patents specified in Schedule 2 is correctly stated;
(v) The Patents and Know-How are the only intellectual property rights owned by, licensed to or used by ** or its Affiliates in relation to Products and to the best of **’s knowledge no intellectual property rights other than the Patents or Know-How are required in order to Develop, manufacture, use, import and/or sell or commercialize Products in the Territory;
(vi) All actions required to be taken before the Effective Date for the prosecution and maintenance of the Patents (including all applicable fees due and payable before such date) have been taken or paid; and
(vii) The Patents are not and, except during the Term, will not become subject to any encumbrance or lien in favor of any Third Party that is inconsistent with or otherwise restricts the extent (a) such representations rights and warranties are made with reference sublicenses granted to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicableFidopharm hereunder.
C. Both before (f) In regards to Development:
(ii) All trials related to Products have been carried out and after giving effect will be carried out in accordance with all relevant Laws;
(iii) Neither ** nor any ** Affiliate is engaged in any litigation, opposition or arbitration proceedings affecting or relating to this AmendmentProducts, the Patents, Know-How (including but not limited to claims relating to product liability) as plaintiff or defendant and there are no Default such proceedings pending or Event threatened by or against ** or any ** Affiliate and ** is not aware of Default shall have occurred and be continuingfacts or circumstances likely to give rise to any such proceedings; and
(iv) No injunction has been granted against ** or its Affiliates in connection with Products, the Patents or Know-How.
D. (g) Neither ** or any ** Affiliate has nor will provide (directly or indirectly) any Third Party access or rights to use its Know-How (including, without limitation, use of any data or under any Patents) for Development, regulatory approval or commercialization of any product containing Active A at a concentration range between **and **weight/volume.
(h) As of the Amendment Closing Date (as defined below)Effective Date, no Loan Party neither it nor its Affiliates has been debarred or is subject to debarment and neither ** nor any grounds, and hereby agrees not to challenge (or to allege or to pursue of its Affiliates will use in any matter, cause or claim arising under or with respect to)capacity, in connection with the Development or commercialization of Products, any case based upon acts or omissions Person who has been debarred pursuant to Section 306 of the Administrative Agent United States Federal Food, Drug and Cosmetic Act, or who is subject of a conviction described in such section. Further, ** agrees to inform Fidopharm in writing immediately if it or any LenderPerson who is performing services hereunder is debarred or is the subject of a conviction described in Section 306, or if any action, suit, claim, investigation or legal administrative proceeding is pending or, to the effectivenessbest of **’s knowledge, genuinenessis threatened, validityrelating to the debarment of **, collectibility or enforceability of the Credit Agreement its Affiliates or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether Person used in any action at law capacity by ** or proceeding its Affiliates in equity, and subject to connection with the availability Development or commercialization of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderProducts.
Appears in 1 contract
Samples: License Agreement (Velcera, Inc.)
Representations, Warranties and Covenants. The Borrower Each Party hereby represents and warrants toas of the Effective Date, and covenants and agrees withcovenants, to the Administrative Agent and the Lenders other Party that:
A. The 12.1.1 it has the power and authority and the legal right to enter into this Agreement and perform its obligations hereunder, and that it has taken all necessary action on its part required to authorize the execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true performance of its obligations hereunder;
12.1.2 this Agreement has been duly executed and correct in all material respects delivered on and as of the date of this Amendment as though made at and as behalf of such date, except to the extent (a) such representations Party and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, and is enforceable against it in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity;
12.1.3 all necessary consents, approvals and authorizations of all Regulatory Authorities and other parties required to be obtained by such Party in equityconnection with the execution and delivery of this Agreement and the performance of its obligations hereunder have been obtained;
12.1.4 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, bylaws or any similar instrument of such Party, as applicable, in any material way, and subject (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;
12.1.5 All employees, consultants, or (sub)contractors of such Party or Affiliates performing development activities hereunder on behalf of such Party are, and such Party hereby covenants to the availability 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;
12.1.6 Such Party will, and such Party hereby covenants to the other Party that it will, perform its activities pursuant to this Agreement in compliance with good laboratory and clinical practices and cGMP and Applicable Law, in each case as applicable under the laws and regulations of the remedy of specific performance or country and the state and local government wherein such activities are conducted, and with respect to the care, handling and use in development activities hereunder of any non-human animals by or on behalf of such Party, will at all times comply (and will ensure compliance by any of its subcontractors) with all applicable national, federal, state and local laws, regulations and ordinances in performing its obligations under this Agreement; and
12.1.7 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 not during the Term, employ or use the services of any person or entity who is debarred, in connection with the development, manufacture or commercialization of the Lead Compounds or Products. In the event that 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 or Sublicensees, which directly or indirectly relate to activities under this Agreement, the other equitable remedy or relief to enforce any right thereunderParty shall be immediately notified in writing.
Appears in 1 contract
Samples: Collaboration and License Agreement (Regulus Therapeutics Inc.)
Representations, Warranties and Covenants. The As a condition to the effectiveness of this Amendment, the Borrower hereby represents and warrants to, and covenants and agrees with, with the Administrative Agent and the Lenders Lender that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have has been duly authorized by all requisite action on the part of such the Borrower and does not contravene, conflict with, or constitute a default under, any provision of: (i) the Borrower’s articles of incorporation or bylaws, (ii) any law, judgment, decree or order applicable to the Borrower or to any other Loan Party, or (iii) any provision of any material agreement or instrument binding upon any Loan Party or upon any of the respective property of a Loan Party. The execution and delivery of this Amendment by the Borrower do not and will not cause any lien to arise under any provision of any material agreement or instrument binding upon any Loan Party or upon any of the respective property of a Loan Party.
B. The representations and warranties of the Loan Parties Borrower contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference expressly relate to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such earlier date only and (b) of inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no . No Default or Event of Default shall have has occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising is continuing under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any other Loan Document, or will occur as a result of the other Loan DocumentsProposed Securities Sale, the Obligationsafter giving effect thereto and to this Amendment.
C. Attached hereto as Exhibit A is a true, the Liens securing any correct and complete copy of the ObligationsAmendment to Master Lease.
D. No member of the Restricted Group is required to obtain any consent, approval or authorization from, or to file any declaration or statement with, any governmental instrumentality or other agency or any other Person in connection with or as a condition to the execution, delivery or performance of the terms or conditions of any Loan Documentthis Amendment.
E. Each of the Loan Documents This Amendment constitutes the legal, valid and binding obligation of each Loan Party signatory theretothe Borrower, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. 7.1 STELKAST Representations. STELKAST represents, warrants and covenants to MAKO as to the following as of the Effective Date:
(a) The Borrower hereby represents execution, delivery and warrants toperformance by STELKAST of this Agreement do not breach any term or provision of or constitute a default under any material indenture, mortgage, deed of trust, contract, agreement, lease or other commitment or instrument to which STELKAST is a party or by which STELKAST or its assets or properties are bound, do not conflict with any provision of the articles of incorporation or bylaws of STELKAST and do not constitute an event which, with the lapse of time or action by a third party, could result in any default under any of the foregoing.
(b) STELKAST has full power, authority and legal right to enter into this Agreement and grant the sublicenses and rights set forth in this Agreement and has not made, and covenants and agrees withwill not make, the Administrative Agent and the Lenders that:
A. The any commitments to others inconsistent with or in derogation of such rights. Upon execution and delivery by STELKAST of this Amendment and the Loan Documents to which any Loan Party is Agreement it will be a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory theretoSTELKAST, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or similar laws affecting the rights and remedies of creditors generally generally. Notwithstanding the foregoing, no representation or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to warranty is made regarding the availability of equitable remedies.
(c) To the remedy actual knowledge of specific performance STELKAST as of the Effective Date, the manufacture, sale and use of the Implant and the use of Licensed Technical Information as permitted by this Agreement, will not infringe the patents or copyrights of, or misappropriated information of, a third party. Notwithstanding any of the foregoing in this Section 6.1(c), the failure by STELKAST to conduct an investigation will not be deemed to be a relevant factor in any other equitable remedy determination as to whether any warranty or relief representation by STELKAST under this Section 6.1(c) is or has been breached
(d) STELKAST has the requisite institutional knowledge and commercially adequate expertise to enforce any right thereunderprovide the technical assistance and clinical support services it is offering and/or pledging to provide to MAKO under this Agreement.
(e) STELKAST maintains adequate insurance covering the Implant (including product liability and commercial general liability insurance), as would be acquired and maintained by a reasonable and prudent businessperson carrying on a similar line of business, but in no case for an amount of less than Four Million Dollars ($4,000,000) per claim and/or $5,000,000 in the aggregate (“Adequate Insurance”). Such Adequate Insurance shall at all times during the Effective Period and for not less than five (5) years thereafter insure MAKO, its Board of Directors, officers, employees, agents and consultants as insured parties.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower Each of the Parties hereby represents and represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatas follows:
A. (a) This Agreement has been duly executed and delivered by such Party and constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other laws relating to or affecting creditors’ rights generally and by general equitable principals. The execution execution, delivery and delivery performance of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement has been duly authorized by all requisite necessary action on the part of such Loan Party, its officers and directors.
B. (b) The representations execution, delivery and warranties performance of this Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
(c) SGI represents and warrants that it has not, and during the Term of the Loan Agreement will not, grant any right to any Third Party relating to the SGI Technology that would conflict with the rights granted to GCOR hereunder. SGI represents and warrants that it has the right to grant the licenses (including the sublicense under the SGI [***] Patents and SGI ADEPT Know-How) granted herein and that, [***], SGI has no knowledge of any rights of any Third Parties contained in that would interfere with the Credit Agreement rights granted to GCOR hereunder or otherwise interfere with the Parties Exploitation of ADEPT-based Collaboration Products and the other Loan Documents are true SXX-00/00. XXX represents and correct in warrants that it has disclosed to GCOR all material respects on and financial obligations existing as of the date Effective Date for the Exploitation of this Amendment as though made at ADEPT and as SGN-17/19.
(d) GCOR represents and warrants that it has not, and during the Term of such datethe Agreement will not, except grant any right to any Third Party relating to the extent GCOR Technology that would conflict with the rights granted to SGI hereunder. GCOR represents and warrants that it has the right to grant the licenses granted herein and that it has no knowledge of any rights of any Third Parties that would interfere with the practice of the GCOR Patents or other GCOR Technology.
(ae) such representations SGI will use diligent efforts to obtain and warranties are made with reference disclose to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior GCOR information relating to the date hereof which were expressly permitted rights, if any, [***] to the SGI Technology licensed under the Loan Documents, [***] as applicablesoon as practicable after the Effective Date.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower (a) Each of the Parties hereby represents and warrants toto the other Party that: Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential.
(i) such Party is lawful entity duly incorporated in their respective controlling jurisdiction. This Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms. The execution, delivery, and covenants and agrees withperformance of the Agreement by such Party does not conflict with any company bylaw, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents agreement, instrument, or understanding, oral or written, to which any Loan Party it is a party have been duly authorized Party or by all requisite action on which it is bound, nor violate any law or regulation, order, or policy of any court, Governmental Body, or administrative or other agency having jurisdiction over it;
(ii) such Party has not, and during the part of such Loan Party.
B. The representations Tenn will not, grant any right to any Third Party relating to its respective Patents, Know-How and warranties of Trademark which would conflict with the Loan Parties contained in the Credit Agreement and rights granted to the other Loan Documents are true Party hereunder;
(iii) such Party will at all times and correct in all material respects on comply with all Applicable Laws relating to its activities under this Agreement; and
(iv) such Party shall implement appropriate processes and controls with respect to technology and work flow methodologies in connection with its activities under or in connection with this Agreement so as to protect the security and privacy of personally identifiable information in accordance with Applicable Laws, provided that each Party acknowledges and agrees that no material personally identifiable information will be shared between the Parties under this Agreement.
(b) Aadi represents, warrants and covenants as of the date of this Amendment as though made at and Effective Date (or as of such dateother/additional time as may be explicitly specified below) to EOC that:
(i) With respect to the Abraxis License, Aadi is the sole and exclusive owner or exclusive licensee (exclusive as to Abraxis as well) of the entire right, title and interest of the Aadi Technology licensed under the Abraxis License Agreement as of the Effective Date and throughout the Tenn. Aadi has and shall keep throughout the Term of this Agreement (except to the extent lost due to any action or omission of EOC in breach of this Agreement) all rights and authorizations (aincluding any authorizations required pursuant to the Abraxis License Agreement) necessary to grant to EOC the licenses under the Aadi Technology granted herein, and has the right to grant the licenses in accordance with this Agreement. To Aadi's Knowledge, no other Person has such representations rights or authorizations (or such person has granted or will grant such right or authorization to Aadi during the Term) to grant such licenses to any other Person in the Territory. The Aadi Technology is not subject to any encumbrance, lien or claim of ownership by any Third Party. [***].
(ii) To Aadi's Knowledge, all applicable fees due to patent authorities with respect to the filing and warranties are made prosecution of the Aadi Patents existing as of the Effective Date have been paid on or before the due date for payment (as such due date may be extended in accordance with reference Applicable Law or patent authority rules and regulations).
(iii) [***].
(iv) Aadi has provided a true, complete and accurate copy of the Abraxis License Agreement to an earlier dateEOC. Except as disclosed to EOC prior to the Effective Date, in which case each such representation of Aadi and warranty shall be true and correct to Aadi's Knowledge, Abraxis has complied in all material respects with the terms of, and Aadi has Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential. not received notice from Abraxis or any Third Party asserting any breach of or giving notice to terminate, the Abraxis License Agreement. [***]. Aadi shall comply in all material respects with the terms of, and not terminate or cause Abraxis or any Third Party to terminate, the Abraxis License Agreement during the Term this Agreement.
(v) Aadi has not been debarred by the FDA, is not subject to any similar sanction of other Regulatory Health Authorities in the Territory, and is not subject to any such debarment or similar sanction by any such Regulatory Health Authority, and Aadi has not used, and will not engage, in any capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a). Aadi shall inform EOC in writing immediately if it or any Person engaged by Aadi who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a) or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Aadi's Knowledge, is threatened, relating to the debarment or conviction of Aadi or any such Person performing services hereunder.
(vi) Aadi shall perform, or shall cause its Affiliates or other licensees or sublicensee to perform, its obligations and responsibilities under this Agreement in compliance with this Agreement, all Applicable Laws, applicable FDA (or foreign equivalent) requirements, including, without limitation, then-current GLP and GCP.
(c) EOC represents, warrants and covenants as of the Effective Date (or as of such date only other/additional time as may be explicitly specified below) to Aadi that:
(i) EOC has not been debarred by the FDA (and (b) inaccuracies resulting from transactions prior is not subject to any similar sanction of other Regulatory Health Authorities in the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined belowTerritory), no Loan Party has and is not subject to any groundssuch debarment or similar sanction by any such Regulatory Health Authority, and hereby agrees EOC has not to challenge (or to allege or to pursue any matterused, cause or claim arising under or with respect to)and will not engage, in any case based upon acts capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or omissions is the subject of a conviction described in Section 306 of the Administrative Agent FFDCA (21 U.S.C. §335a). EOC shall inform Aadi in writing immediately if it or any Lender, Person engaged by EOC who is performing services under this Agreement is debarred or is the effectiveness, genuineness, validity, collectibility or enforceability subject of a conviction described in Section 306 of the Credit FFDCA (21 U.S.C. §335a), or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to EOC's Knowledge, is threatened, relating to the debarment or conviction of EOC or any such Person performing services hereunder.
(ii) To the extent permissible under Applicable Laws, each employee and contractor of EOC performing obligations under this Agreement shall, prior to conducting any such obligations hereunder, be obligated by Applicable Law, or written contract to (i) promptly disclose to EOC of all Inventions and Know-How conceived or reduced to practice by such employee or contractor during any performance under this Agreement, (ii) automatically assign to EOC all right, title and interest in and to all such Inventions and Know-How and all Intellectual Property Rights therein, including all Product- related Inventions and Product-related Data, and (iii) adhere to similar obligations of confidentiality as are set forth in this Agreement. EOC shall not knowingly engage in any activities that use the Inventions covered or claimed in the Aadi Patents, or any Aadi Know-How a manner that is outside the scope of the license rights expressly granted to it hereunder. Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential.
(iii) EOC shall perform, or cause its Affiliates or Sublicensee to perform, its obligations and responsibilities under this Agreement in compliance with this Agreement, all Applicable Laws, applicable NMPA (or foreign equivalent) requirements, including, without limitation, then-current GLP and GCP.
(iv) There are no legal claims, judgments, or settlements against EOC or any of the other Loan Documentsits Affiliates, the Obligationsor pending or, the Liens securing any of the Obligationsto EOC's Knowledge, threatened, legal claims, or litigation, in each case, relating to antitrust, anti-competition, anti-bribery or corruption violations. There are no pending allegations, internal investigations or government inquiries or investigations involving EOC or any of its Affiliates relating to compliance with antitrust, anti-competition, anti-bribery or corruption laws and EOC is not aware of any facts or circumstances that would give rise to any violations thereof.
(v) EOC has, or can readily obtain, sufficient technical, clinical, and regulatory expertise and financial resources to perform all of its obligations pursuant to this Agreement, including its obligations relating to Development, Commercialization, and obtaining Regulatory Approval and to meet its obligations that come due pursuant to this Agreement.
(vi) During the Term, EOC will only engage clinical trial sites under the Development Plan that conduct all clinical trials in compliance with Applicable Laws, including GCP, and are approved by the NMPA or the applicable Regulatory Authority.
(vii) EOC shall not take any action that would reasonably be expected to materially adversely affect the Development or Commercialization of Products outside the Territory or the Field.
(viii) EOC shall comply in all material respects with the terms or conditions of any Loan Documentthe Abraxis License Agreement applicable to EOC during the Term this Agreement.
E. Each (ix) Neither EOC nor any of the Loan Documents constitutes the legal, valid and binding obligation its Affiliates is developing or attempting to develop a generic version of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderAbraxane®.
Appears in 1 contract
Representations, Warranties and Covenants. (a) The Borrower Bank hereby represents and warrants to, and covenants to Advance America, as of the date hereof and agrees withon a continuing basis throughout the term of this Agreement, the Administrative Agent and the Lenders that:
A. (i) The execution and delivery of this Amendment and the Loan Documents to which any Loan Party Bank is a duly organized and validly existing state bank organized under the laws of the State of Washington, with its headquarters office located in Lacey, Washington. The Bank is insured by the FDIC, and has the power and authority and all requisite licenses, permits and authorizations to execute and deliver this Agreement and perform hereunder.
(ii) The Bank is authorized to make Loans as contemplated by this Agreement and to contract with a third party have to provide the services which Advance America will provide under this Marketing and Servicing Agreement.
(iii) The Bank is authorized under applicable law to contract with a third party to provide loan processing services not covered by this Marketing and Servicing Agreement, and transmission by and between Advance America and such third party of information required for processing the Loans does not violate Washington state law or federal law.
(iv) The Bank is authorized under applicable law to sell participation interest(s) in the Loans, or to sell the Loans to a third party or third parties prior to the maturity date on such Loans.
(v) This Agreement has been duly authorized by all requisite action on the part Bank’s Board of such Loan Party.
B. The representations Directors, executed and warranties of delivered by the Loan Parties contained in the Credit Agreement Bank and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation agreement of each Loan Party signatory theretothe Bank, enforceable against it the Bank in accordance with its respective terms, except as the enforcement enforceability may be subject to limited by bankruptcy, insolvency, reorganization, moratorium and similar reorganization or other laws affecting the creditors’ rights and remedies of creditors generally or the application of and by general principles of equity, equity (regardless of whether such enforceability is considered in any action at law or a proceeding in equityequity or at law).
(vi) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of the articles of incorporation or other governance documents of the Bank; or (B) violate or conflict with, constitute a breach of or default under, result in the loss of any material benefit under, or permit the acceleration of or entitle any party to accelerate any obligation under or pursuant to, any material mortgage, lien, lease, agreement, instrument, order, law, arbitration award, judgment or decree to which the Bank is party or by which the Bank or any of its assets may be bound.
(vii) During the term of this Agreement, Bank shall provide to Advance America data submissions and reports reasonably required by Advance America and its advisors in order to maintain effective internal controls and to monitor results under this Agreement, including without limitation the performance of the Loans and the Banks obligation hereunder.
(viii) During the term of this Agreement, but only to the extent permissible under applicable laws, regulations and regulatory practices, Advance America and its auditors shall have reasonable access to the Bank’s accounting records relating to Loans made in Arkansas. Subject to the foregoing limitations, Advance America will also have access to the officers, employees and accountants of the Bank for the same purposes as set forth in (vii) to discuss such records.
(ix) The bank shall use its reasonable best efforts to comply in all material respects with the CFSA Best Practices in effect of the date of this Agreement, in the form provided to it by Advance America, and subject any reasonable Best Practices, or modifications to such practices approved and adopted by the Community Financial Services Association of America (the “CFSA”) during the term of this Agreement; provided the practices comply in all respects with applicable law, and the interpretation of such law by federal, state, or other regulatory authorities with jurisdiction.
(x) There are no regulatory actions or lawsuits against Bank relating to the availability marketing and Servicing of Loans.
(b) Advance America hereby represents and warrants to the Bank, as of the remedy date hereof and on a continuing basis throughout the term of specific this Agreement, that:
(i) Advance America is duly organized and validly existing, and licensed to do business as a corporation under the laws of the State of Delaware, and is duly qualified to do business as contemplated under this Agreement, and in good standing in, Arkansas.
(ii) Advance America has the corporate power and authority, and all requisite licenses, permits and authorizations, to execute and deliver the Agreement and to perform their duties hereunder. This Agreement has been duly authorized by Advance America’s Board of Directors, executed and delivered by it and constitutes its legal, valid and binding agreements, enforceable against them in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this Agreement will not (A) violate or conflict with any provision of the articles of organization, operating agreement or other governance documents of Advance America; or (B) violate or conflict with, constitute a breach of or default under, result in the loss of any other equitable remedy material benefit under, or relief permit the acceleration of or entitle any party to enforce accelerate any right thereunderobligation under or pursuant to, any material mortgage, lien, lease, agreement, instrument, order, law, arbitration award, judgment or decree to which Advance America is a party or by which Advance America assets may be bound.
(iv) Advance America will market and service the Loans in accordance with this Agreement and in accordance with the policies and procedures established and approved by the Bank pursuant to this Agreement.
(v) Advance America will operate its stores in Arkansas in accordance with this Agreement and will follow its normal operating procedures in operating these stores including providing adequate security measures, hiring appropriate employees, and being open for business during its normal business operating hours.
(vi) There are no regulatory actions, investigations, or lawsuits against Advance America or its affiliates relating to the marketing and servicing of Loans.
(vii) To the best of its knowledge, Advance America represents that written information and financial statements provided to the Bank in contemplation of this Agreement did not contain any material omissions of fact and were materially correct.
Appears in 1 contract
Samples: Marketing and Servicing Agreement (First Community Financial Group Inc)
Representations, Warranties and Covenants. The Borrower Each Party hereby represents and warrants toto the other Party as of the Effective Date and further covenants to the other Party, as follows:
16.1.1 Such Party (a) has the power and authority and the legal right to enter into this Agreement, perform its obligations hereunder, and, subject to the terms and conditions set forth herein, grant the rights, licenses, sublicenses and further sublicenses provided for herein, and covenants and agrees with, (b) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true performance of its obligations hereunder. This Agreement has been duly executed and correct in all material respects delivered on and as of the date of this Amendment as though made at and as behalf of such date, except to the extent (a) such representations Party and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, and is enforceable against it in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity.
16.1.2 There is no pending litigation in equitywhich such Party or any of its Affiliates is named as a party and has been served with process and, and subject to the availability knowledge of the remedy officers of specific performance such Party, there is no threatened litigation against such Party or any of its Affiliates (and such Party has not received any communication) that alleges that such Party's activities related to this Agreement have violated, or that by conducting the activities as contemplated herein such Party would violate, any of the intellectual property rights of any other equitable remedy Person.
16.1.3 Except in relation to the Parties' Hxxx-Xxxxx-Xxxxxx filings, as provided in Section 8.9 hereof, all necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such Party in connection with the execution and delivery of this Agreement and the performance of its obligations hereunder have been obtained.
16.1.4 The execution and delivery of this Agreement and the performance of such Party's obligations hereunder (a) do not conflict with or relief violate any requirement of applicable law or regulation or any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such Party, as applicable, in any material way, and (b) [*] do not in any material way conflict with, violate, or breach or constitute a default or require any consent under, any contractual obligation or court or administrative order by which such Party is bound.
16.1.5 At no time shall such Party or its Affiliates, directly or indirectly, expressly or by implication, by action or omission or otherwise (a) assign, transfer, convey or otherwise encumber any right, title or interest in or to enforce its Patent Rights or Know-How, (b) grant any right thereunderlicense or other right, title or interest in or to its Patent Rights or Know-How, or (c) agree to or otherwise become bound by any covenant not to sxx for any infringement, misuse or other action or inaction with respect to its Patent Rights or Know-How, in each case that is inconsistent with the grants, assignments, and other rights reserved to the other Party under this Agreement. [*]=Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby represents and 7.1 Charterer represents, warrants to, and covenants and agrees with, the Administrative Agent and the Lenders with respect to this Charter Party that:
A. The execution (a) Charterer is a limited liability company duly organized, validly existing and delivery in good standing under the laws of the State of Colorado, and is duly qualified and authorized to do business wherever the nature of its activities or properties require such qualification and authorization.
(b) Charterer has the full power, authority and legal right to execute, deliver and perform the terms of this Amendment and the Loan Documents to which any Loan Charter Party. This Charter Party is a party have has been duly authorized by all requisite necessary action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement Directors of Charterer and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, continues a valid and binding obligation of each Loan Party signatory thereto, Charterer enforceable against it in accordance with its respective terms.
(c) There is no law and no charter, by law or preference share provision of Charterer and no provision in any existing mortgage, indenture, contract or agreement binding on Charterer which would be contravened by the execution, delivery or performance by Charterer of the terms of this Charter Party.
(d) No consent of the holder of any indebtedness of Charterer is or will be required as a condition to the validity of this Charter Party or, if required, all such consents have been obtained.
(e) Neither the execution or delivery of this Charter Party nor fulfillment of or compliance with the terms and provisions hereof will contravene any provision of law, including, without limitation thereto, any statute, rule, regulation, judgment, decree, order, franchise or permit applicable to Charterer or any agreement or instrument to which Charterer is now a party.
(f) Charterer represents that it now is and covenants throughout the term of this Charter Party that it will continue to be a citizen of the United States qualified to engage in the coastwise trade within the meaning of Section 2 of the Shipping Act, 1916, as amended (46 USC, Section 802, as amended). Charterer further covenants that it will not cause or permit the Vessel to be operated in any manner contrary to the law and the Charterer will not engage in any unlawful trade or violate any law or carry any cargo that will expose the Vessel to penalty, forfeiture or capture, and will not do, or suffer or permit to be done (other than to suffer or permit anything done by the Owner), anything which can or may injuriously effect the documentation of the Vessel under the laws and regulations of the United States and will at all times keep the Vessel duly documented thereunder.
7.2 Owner represents, warrants and covenants with respect to this Charter Party that:
(a) Owner is a corporation duly organized, validly existing and in good standing under the laws of the State of Georgia, and is duly qualified and authorized to do business wherever the nature of its activities or properties require such qualification and authorization.
(b) Owner has the full power, authority and legal right to execute, deliver and perform the terms of this Charter Party. This Charter Party has been duly authorized by all necessary corporate action of Owner and constitutes a valid and binding obligation of Owner enforceable in accordance with its terms.
(c) There is no law and no charter, by-law or preference share provision of Owner and no provision in any existing mortgage, indenture, contract or agreement binding on Owner which would be contravened by the execution, delivery or performance by Owner of the terms of this Charter Party.
(d) No consent of the holder of any indebtedness of Owner or of any mortgagee of the Vessel is or will be required as a condition to the validity of this Charter Party or, if required, all such consents have been obtained.
(e) Neither the execution or delivery of this Charter Party nor fulfillment of or compliance with the terms and provisions hereof will contravene any provision of law, including, without limitation thereto, any statute, rule, regulation, judgment, decree, order, franchise or permit applicable to Owner or any agreement or instrument to which Owner is now a party.
(f) Owner has good and marketable title to the Vessel, free and clear of all liens, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any set forth on Schedule I annexed hereto. There is no action at law or proceeding in equitypending or, and subject to the availability of the remedy of specific performance or of insofar as Owner knows, threatened against Owner before any other equitable remedy or relief to enforce any right thereunder.court or
Appears in 1 contract
Samples: Bareboat Charter Party (Leisure Time Casinos & Resorts Inc)
Representations, Warranties and Covenants. The Borrower hereby 10.1 Each Party represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution a. it is duly organized and delivery validly existing under the laws of its state or country of incorporation, and has full corporate power and authority to enter into this Amendment Agreement and to carry out the provisions hereof;
b. it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the Loan Documents to which any Loan Party is a party have person executing this Agreement on its behalf has been duly authorized to do so by all requisite action on the part of such Loan Party.corporate action;
B. The representations c. this Agreement is legally binding upon it and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms; that the execution, delivery and performance of this Agreement by it does not conflict with any Agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any governmental entity having jurisdiction over it; and
d. it has not granted, and will not grant during the term of the Agreement, any right to any third party that would conflict with the rights granted to the other Party hereunder; that it has (or will have at the time performance is due) maintained, and will maintain, and keep in full force and effect, all agreements, permits and licenses necessary to perform its obligations hereunder; and in complying with the terms and conditions of this Agreement and carrying out any obligations hereunder, it will comply (and it will ensure that its subcontractor’s comply) with all applicable laws, regulations, ordinances, statutes, and decrees or proclamations of all governmental entities having jurisdiction over such Party.
10.2 Except for the rights of any party to the MD Xxxxxxxx License Agreements, Dermin License Agreements, and the Government of the United States of America ("Government") as set forth below and except as may otherwise be set forth in this Agreement, MBI represents and warrants that:
a. MBI is the exclusive licensee of the Sublicensed Patent Rights and is entitled to grant the rights and licenses specified herein, subject to the terms and conditions of the MD Xxxxxxxx License Agreements, Dermin License Agreements and/or any rights of the Government;
b. as of the Effective Date, all right, title, and interest of Moleculin, LLC under the June 2010 Agreement is owned by MBI;
c. as of the Effective Date, all right, title and interest of Intertech Bio Corporation under the April 2012 Agreement has been sold, assigned and transferred to MBI and is owned by MBI;
d. as of the Effective Date, MBI is entitled to the benefit of each of the Dermin License Agreements as licensor, and is entitled to exercise the rights of the licensor in each of the Dermin License Agreements;
e. MBI has not entered into any agreement granting any rights, interest or claim in or to any Sublicensed Patent Rights, if any, to any third party that conflicts with or is inconsistent with the rights granted to WPD pursuant to this Agreement;
f. to MBI’s knowledge, as of the Effective Date of this Agreement, the patents encompassed by the Sublicensed Patent Rights are, or upon issuance will be, valid, and enforceable patents, no third party is infringing or threatened to infringe any such Sublicensed Patent Rights, and no third party has challenged or threatened to challenge the scope, validity, or enforceability of such patents or Sublicensed Patent Rights, nor is MBI aware of any valid basis for any such challenge;
g. MBI will consult with and keep WPD reasonably informed within the confines of the JDC meetings of the status of any patent application or patent related to the Sublicensed Patent Rights, subject to Section 7.4 of this Agreement;
h. to MBI’s knowledge, as of the Effective Date of this Agreement, there are no third party patents or intellectual property rights which would be infringed by WPD’s exercise of the rights granted to WPD under this Agreement; and
i. to MBI’s knowledge, as of the Effective Date of this Agreement, there are no other patents, patent applications or intellectual property rights created or owned by MBI which would be infringed by WPD’s exercise of the rights granted to WPD under this Agreement.
10.3 WPD understands that the Sublicensed Patent Rights may have been developed under a funding agreement with the Government and, if so, that the Government may have certain rights relative thereto. This Agreement is explicitly made subject to the Government's rights under any such agreement and any applicable law or regulation. To the extent that there is a conflict between any such agreement, applicable law or regulation and this Agreement, the terms of such Government agreement, applicable law or regulation shall prevail. To MBI’s knowledge, as of the Effective Date of this Agreement there are no funding agreements with the Government under which any of the Sublicensed Patent Rights were developed.
10.4 WPD understands and acknowledges that certain rights and interests to substantial portions of the Sublicensed Subject Matter have been licensed to Dermin pursuant to the Dermin License Agreements and Dermin has certain rights relative thereto that conflict with rights granted herein. This Agreement is explicitly made subject to the rights granted to Dermin pursuant to the Dermin License Agreements, and the rights granted to WPD shall be junior to such rights granted to Dermin. WPD hereby acknowledges that it has received and reviewed the Dermin License Agreements.
10.5 WPD hereby acknowledges that it has received and reviewed the MD Xxxxxxxx License Agreements and patent information.
10.6 WPD understand and agrees that, except as set out in section 10.2 of this Agreement, MBI, by this Agreement, makes no representation as to the enforcement may operability or fitness for any use, safety, efficacy, approvability by regulatory authorities, time and costs of development, patentability, and/or breadth of the Sublicensed Subject Matter. Except as set out in section 10.2 of this Agreement, MBI, by this Agreement, also makes no representation as to whether any patent covered by the Sublicensed Patent Rights is valid or as to whether there are any patents now held, or which will be subject to bankruptcyheld by others or by MBI in the Sublicensed Field. Except as set out in section 10.2 of this Agreement, insolvencyMBI does not make any representation that the inventions contained in Sublicensed Patent Rights do not infringe any other patents now held or that will be held by others.
10.7 WPD, reorganizationby execution hereof, moratorium acknowledges, covenants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether agrees that WPD has not been induced in any action at law way by MBI or proceeding in equityemployees of MBI to enter into this Agreement, and subject to the availability further represents that WPD is entering into this Agreement voluntarily.
10.8 Upon execution of this Agreement, WPD will provide MBI with a complete schedule of the remedy equity ownership of specific performance or WPD, and further agrees to update such equity ownership by management, the board of any directors of WPD, major advisors, and other equitable remedy or relief to enforce any right thereunderrelated parties on a schedule within 30 days after the completion of each calendar quarter after the date hereof.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby Each of the Guarantors represents and warrants to, to each Lender and covenants and agrees with, the Administrative Agent as of the date of this Guaranty, giving effect to the consummation of the transactions contemplated by the Loan Documents on the Effective Date, and thereafter on each date as required by Section 4.02 of the Lenders Credit Agreement that:
A. The execution (a) It (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and delivery of this Amendment authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which any Loan Party it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) Each Loan Document to which such Guarantor is party has been duly executed and delivered by such Guarantor. Each Loan Document to which such Guarantor is party constitutes a legal, valid and binding obligation of such Guarantor, enforceable against each such Guarantor in accordance with its terms, except as may be limited by applicable Debtor Relief Laws and general principles of equity.
(c) The execution, delivery and performance by it of each Loan Document to which such Guarantor is party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations necessary corporate or other organizational action, and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent do not (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as contravene the terms of any of such date only Guarantor’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material Contractual Obligation to which such Guarantor is a party or affecting such Guarantor or the properties of such Guarantor or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Guarantor or its property is subject; or (c) violate any material Law.
(d) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, such Guarantor of this Guaranty or any other Loan Document other than (a) those that have already been obtained and are in full force and effect and (b) inaccuracies resulting from transactions prior filings to perfect the Liens created by the Collateral Documents. In addition to the date hereof which were expressly permitted under the Loan Documentsforegoing, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As each of the Amendment Closing Date (Guarantors covenants that, so long as defined below), no Loan Party any Lender has any grounds, and hereby agrees not to challenge (Commitment or to allege or to pursue any matter, cause or claim arising Letter of Credit outstanding under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any amount payable under the Credit Agreement or any other Secured Obligations shall remain unpaid, it will, and, if necessary, will cause the Company or any other Borrower to, fully comply with those covenants and agreements of the other Loan Documents, Borrowers applicable to such Guarantor set forth in the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan DocumentCredit Agreement.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby (a) Amyris represents, warrants and covenants that:
(i) the Services will be performed in a professional and workmanlike manner and in full compliance with all applicable laws and regulations, Exhibit A and the applicable SOW;
(ii) none of the Services or any part of this Agreement is or will be inconsistent with any obligation Amyris may have to others; all work under this Agreement shall be performed by OCT Personnel, and to the best of Amyris’s knowledge, such work will not infringe or misappropriate any intellectual property rights of Amyris, any of its Affiliates nor any third party; Amyris has the full right to provide TOTAL with the assignments and rights provided for herein; and
(i) in performing the Services, Amyris will not, without TOTAL’s prior written consent, disclose to TOTAL or use for its benefit any trade secret or proprietary or confidential information of any third party.
(b) Each Party represents and warrants toto the other that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and covenants has all requisite corporate power and agrees withauthority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, the Administrative Agent and the Lenders that:
A. The execution and delivery of person or persons executing this Amendment and the Loan Documents to which any Loan Party is a party have Agreement on its behalf has been duly authorized to do so by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit corporate or partnership action; (iii) this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based is legally binding upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory theretoit, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to limited or affected by applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other laws of general application relating to or affecting creditors' rights generally in accordance with its terms; and similar laws affecting the rights and remedies (iv) execution of creditors generally this Agreement does not conflict with any agreement, instrument or the application of principles of equityunderstanding, whether in oral or written, to which it is a Party or by which it may be bound, nor violate any action at material law or proceeding in equity, and subject to the availability of the remedy of specific performance or regulation of any court, governmental body or administrative or other equitable remedy or relief to enforce agency having jurisdiction over it.
(c) Each Party understands and agrees that except as expressly provided herein, the Services, training and any right thereundermaterials provided hereunder are provided AS IS WITHOUT REPRESENTATION OR WARRANTY, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
(d) EXCEPT FOR VIOLATIONS OF SECTION 3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
(e) EXCEPT FOR VIOLATIONS OF SECTION 3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY FOR ANY DIRECT DAMAGES, HOWEVER CAUSED, ARISING OUT OF THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT IN EXCESS OF AMOUNT EQUAL TO THE MAXIMUM ANNUAL FEE PAID FOR ANY CALENDAR YEAR UNDER THIS AGREEMENT.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby (a) Lessee represents and warrants toto Lessor that: (i) the execution and delivery by Lessee of this Agreement and the Certificate of Acceptance are duly authorized on the part of Lessee and constitute valid obligations binding upon, and covenants and agrees withenforceable against, Lessee; (ii) neither the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment Agreement or the Certificate of Acceptance, nor the due performance thereof by Lessee, including the commitment to pay (and the Loan Documents payment of) Rent, will result in any breach of, or constitute a default under, or violation of, Lessee’s constitutive documents, or any material agreement to which any Loan Party Lessee is a party have been or by which Lessee is bound; (iii) Lessee is duly authorized formed, validly existing and in good standing in its state of formation and in any jurisdiction where the Equipment is located; and (iv) no material approval, consent or withholding of objection is required from any governmental authority or entity with respect to the entering into, or performance of this Agreement or the Certificate of Acceptance by all requisite action on the part of such Loan PartyLessee.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are (b) Lessee has provided to Lessor true and correct copies of its constitutive documents, authorizing resolutions for the transactions contemplated hereby, and a certificate of incumbency, each certified by a duly appointed officer of Lessee.
(c) Without the prior consent of Lessor, Lessee shall not: (i) amend or supplement any Project Document or Governmental Approval in all material respects on any manner that could be reasonably expected to affect materially or adversely Lessor’s interest in the Lease; or (ii) transfer or terminate any Project Document.
(d) Without the prior consent of Lessor, Lessee shall not (i) permit the offtaker under the Power Purchase Agreement to net or setoff any mutual debts or payment obligations between Lessee and as of offtaker owing under the date of this Amendment as though made at and as of such datePower Purchase Agreement, except to the extent Lessee’s consent is required for such netting or setoff or (aii) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior consent to the date hereof which were expressly permitted offtaker. under the Loan DocumentsPower Purchase Agreement assigning its obligations under the Power Purchase Agreement, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderextent Lessee’s consent is required for such assignment.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower (a) Nabi hereby represents and warrants to Biotest that Nabi has legal title and/or a valid license to the Products, Drug Product and Drug Substance (with rights to allow Biotest to perform the services hereunder) and that Biotest’s performance of a Program (including its use of the Process) will not violate or infringe on the patents, industrial property rights, trade secrets, trademarks, tradenames, servicemarks, copyrights or any other intellectual property rights of any Third Party. Nabi further represents and warrants that prior to the commencement of any Program under this Agreement it shall be entitled to supply Nabi Confidential Information to Biotest.
(b) To the best of Nabi’s knowledge, it hereby represents and warrants to Biotest that the Drug Substance and Drug Product are and will be in compliance with all federal, state and local laws and regulations required for use, distribution and testing of such materials and that such materials pose no environmental risk.
(c) To the best of Nabi’s knowledge, it hereby represents to Biotest that any technical or regulatory information or documentation supplied by Nabi or on its behalf to Biotest (including, but not limited to, process details, analytical methods, Specifications, development reports, technology transfer documents, plans, engineering documents and covenants other documents) and agrees withrequired for execution of a Program is accurate and suitable for its intended use in all material respects.
(d) Each Party hereby represents and warrants to the other Party that it has full power and authority to enter into, deliver and perform its obligations under this Agreement, and it has taken all action required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment Agreement and to consummate the transactions contemplated hereby, and the Loan Documents to which any Loan person signing this Agreement on behalf of such Party is a party have has been duly authorized by all requisite action to act on the part behalf of and to bind such Loan Party.
B. The representations (e) Biotest warrants and warranties of the Loan Parties contained represents that (i) each Program will be performed in the Credit Agreement accordance with Nabi’s past practice, as and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent disclosed to Biotest, (aii) such representations and warranties are made with reference it will use all commercially reasonable efforts to an earlier dateachieve the estimated deadlines for a Program, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (biii) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As applicable regulatory approval of the Amendment Closing Date (as defined below)Process and the Drug Product, no Loan Party has any groundsBiotest will not knowingly ship Drug Substance to Nabi that is considered to be adulterated or misbranded, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions within the meaning of the Administrative Agent or any LenderU.S. Food, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the ObligationsDrug & Cosmetics Act, or any of the terms comparable U.S. laws, rules or conditions regulations as a result of any Loan Documentact or omission of Biotest, unless Nabi has authorized Biotest in writing to do so.
E. Each of the Loan Documents constitutes the legal(f) BIOTEST MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO ANY PROGRAM, valid PROCESS, ANY PRODUCT, DRUG SUBSTANCE, DRUG PRODUCT, ANY OTHER PRODUCTS OR SERVICES OR ANY OTHER ACTIVITIES OF BIOTEST HEREUNDER, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN.
(g) Biotest warrants and binding obligation of each Loan Party signatory theretorepresents that (i) it has never been and is not currently, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium a Debarred Entity and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject (ii) to the availability best of its knowledge no Debarred Entity or Debarred Individual, including any subcontractors or third parties, will perform any services hereunder on Nabi’s behalf. In the remedy event that Biotest becomes aware of specific performance FDA investigations of, or debarment proceedings against, Biotest or any Person performing a Program, Biotest will immediately notify Nabi of any other equitable remedy or relief such circumstances during the term of this Agreement.
(h) Each Party represents and warrants that all activities conducted pursuant to enforce any right thereunderthis Agreement shall be in compliance with all applicable laws in the United States.
Appears in 1 contract
Samples: Manufacturing Services Agreement (Nabi Biopharmaceuticals)
Representations, Warranties and Covenants. The Borrower 12.1.1 Each of the Parties hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and Party that, as of the date of this Amendment as though made at and as of such date, except to the extent Effective Date:
(a) such representations Such Party has full corporate right, power and warranties are made with reference authority to an earlier date, in which case each such representation enter into this Agreement and warranty shall be true to perform its respective obligations under this Agreement and correct in all material respects as of such date only that it has the right to grant the licenses and sublicenses granted pursuant to this Agreement.
(b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before This Agreement is a legal and after giving effect to this Amendment, no Default or Event of Default shall have occurred valid obligation binding upon such Party and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms. The execution, except as delivery and performance of the enforcement may be subject Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, to bankruptcywhich it is a Party or by which it is bound, insolvency, reorganization, moratorium and similar laws affecting nor violate any Law of any Governmental Authority having jurisdiction over it.
(c) Such Party has not granted any right to any Third Party that would conflict with the rights granted to the other Party hereunder.
(d) Except for Regulatory Approvals, pricing and/or reimbursement approvals, manufacturing approvals and/or similar approvals necessary for the Development, Manufacture or Commercialization of the Compound and remedies Collaboration Products, such Party has obtained all necessary consents, approvals and authorizations of creditors generally all Government Authorities and other Persons required to be obtained by it as of the Effective Date in connection with the execution, delivery and performance of this Agreement; provided, that, for clarity, it is agreed that a termination by a Party in accordance with Section 13.6 shall not be deemed to constitute evidence of a breach of this Section 12.1.1(d).
12.1.2 Each Party hereby covenants to the other Party that, during the Term:
(a) Such Party will not grant any right to any Third Party that would conflict with the rights granted to the other Party hereunder.
(b) In the course of the Development of the Compound and Collaboration Products, such Party will not use any employee or consultant that is debarred by the FDA or, to such Party’s knowledge, is the subject of debarment proceedings by the FDA.
12.1.3 New River hereby represents and warrants to Shire that, as of the Effective Date:
(a) There is no action or proceeding pending or, to New River’s knowledge, threatened, with respect to Collaboration Products and/or the Compound, including without limitation the conduct of any clinical trials, manufacturing activities or other activities, or that questions the validity of this Agreement or any action taken by New River in connection with the execution of this Agreement. There are no material unsatisfied judgments or outstanding orders, injunctions, decrees, stipulations or awards (whether rendered by a court, an administrative agency or by an arbitrator) against New River with respect to Collaboration Products and/or the Compound, including without limitation the conduct of any clinical trials, manufacturing activities or other activities.
(b) IND #67482 and IND #70109 (i) have been filed in the name of New River and are in effect; and (ii) to New River’s knowledge, constitutes all governmental approvals, permits and licenses required by New River in connection with the performance of clinical trials concerning the Collaboration Product or the application Compound, as such clinical trials are conducted by New River. Attached hereto as Schedule 12.1.3(b) is a true, correct and complete list of principles of equity, whether in any action at law or proceeding in equity, all INDs and subject Drug Approval Applications filed with a Governmental Authority relating to the availability of the remedy of specific performance Compound or of any other equitable remedy or relief to enforce any right thereundera Collaboration Product.
Appears in 1 contract
Samples: Collaboration Agreement (New River Pharmaceuticals Inc)
Representations, Warranties and Covenants. The Borrower Each Credit Party signatory hereto hereby represents and represents, warrants to, and covenants and agrees with, the Administrative to Agent and each Lender as follows:
(a) the Lenders that:
A. The execution execution, delivery and delivery performance by each of the Credit Parties signatory hereto of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on necessary action, and do not and will not:
(i) contravene the part terms of any of that Person’s Organizational Documents;
(ii) conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Credit Party is a party or any order, injunction, writ or decree of any Governmental Authority to which such Credit Party or its Property is subject; or
(iii) violate any material Requirement of Law in any material respect;
(b) such Credit Party has the power and authority to execute, deliver and perform its obligations under this Amendment and the Loan Party.Agreement, as amended hereby;
B. The (c) this Amendment constitutes the legal, valid and binding obligations of each such Credit Party which is a party hereto enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;
(d) after giving effect to this Amendment and the transactions contemplated hereby, each of the representations and warranties of the Loan Parties contained in the Credit Loan Agreement and the other Loan Documents are is true and correct in all material respects on and as of the date of this Amendment hereof as though if made at and as of such date, on the date hereof (except to the extent (a) such for representations and warranties are made with reference to an earlier that speak as of a specific date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and specific date);
(be) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred exists or would result from the transactions contemplated by this Amendment; and
(f) a true, correct and be continuing.
D. As complete copy of the Revolving Loan Agreement Third Amendment Closing Date (is attached hereto as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.Exhibit B.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
Representations, Warranties and Covenants. The Borrower hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations WMMA represents, warrants and warranties are made with reference covenants as follows:
(i) WMMA is a nonprofit corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and has full power and authority to an earlier datemake and perform this Agreement and Plan of Merger according to its terms.
(ii) No approval of this Agreement and Plan of Merger by any regulatory authority is required by law, and neither this Agreement and Plan of Merger nor the performance thereof will violate any provisions of the WMMA Articles of Incorporation or Bylaws or equivalent governing instruments of WMMA or any applicable law or regulation of any governmental authority.
(iii) WMMA is not subject to any charter, bylaw, indenture, judgment or other restriction which would prevent the consummation of the transactions contemplated in this Agreement and Plan of Merger.
(iv) WMMA is not subject to any pending or threatened litigation or proceeding which case each such representation might materially and warranty shall be true adversely affect its financial condition or its continued operations. WMMA has provided its most recent financial statement and correct in all material respects as IRS Form 990 to the Board of such date only and Directors of WMIA.
(b) inaccuracies resulting from WMIA represents, warrants and covenants as follows:
(i) WMIA is a nonprofit corporation duly organized, validly existing and in good standing under the laws of the State of Illinois and has full power and authority to make and perform this Agreement and Plan of Merger according to its terms.
(ii) No approval of this Agreement and Plan of Merger by any regulatory authority is required by law, and neither this Agreement and Plan of Merger nor the performance thereof will violate any provisions of the WMIA Articles of Incorporation or Bylaws or equivalent governing instruments of WMIA or any applicable law or regulation of any governmental authority.
(iii) WMIA is not subject to any charter, bylaw, indenture, judgment or other restriction which would prevent the consummation of the transactions prior contemplated in this Agreement and Plan of Merger.
(iv) WMIA is not subject to any pending or threatened litigation or proceeding which might materially and adversely affect its financial condition or its continued operations. WMIA has provided its most recent financial statement and IRS Form 990 to the date hereof which were expressly permitted under the Loan Documents, as applicableBoard of Directors of WMMA.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: Merger Agreement
Representations, Warranties and Covenants. The Borrower hereby 10.1 Each Party represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders that:
A. The execution a. it is duly organized and delivery validly existing under the laws of its state or country of incorporation, and has full corporate power and authority to enter into this Amendment Agreement and to carry out the provisions hereof;
b. it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the Loan Documents to which any Loan Party is a party have person executing this Agreement on its behalf has been duly authorized to do so by all requisite action on the part of such Loan Party.corporate action;
B. The representations c. this Agreement is legally binding upon it and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms; that the execution, delivery and performance of this Agreement by it does not conflict with any Agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any governmental entity having jurisdiction over it; and
d. it has not granted, and will not grant during the term of the Agreement, any right to any third party that would conflict with the rights granted to the other Party hereunder; that it has (or will have at the time performance is due) maintained, and will maintain, and keep in full force and effect, all agreements, permits and licenses necessary to perform its obligations hereunder; and in complying with the terms and conditions of this Agreement and carrying out any obligations hereunder, it will comply (and it will ensure that its subcontractor’s comply) with all applicable laws, regulations, ordinances, statutes, and decrees or proclamations of all governmental entities having jurisdiction over such Party.
10.2 Except for the rights of any party to the MD Xxxxxxxx License Agreements, Dermin License Agreements, and the Government of the United States of America ("Government") as set forth below and except as may otherwise be set forth in this Agreement, MBI represents and warrants that:
a. MBI is the exclusive licensee of the Sublicensed Patent Rights and is entitled to grant the rights and licenses specified herein, subject to the terms and conditions of the MD Xxxxxxxx License Agreements, Dermin License Agreements and/or any rights of the Government;
b. as of the Effective Date, all right, title, and interest of Moleculin, LLC under the June 2010 Agreement is owned by MBI;
c. as of the Effective Date, all right, title and interest of Intertech Bio Corporation under the April 2012 Agreement has been sold, assigned and transferred to MBI and is owned by MBI;
d. as of the Effective Date, MBI is entitled to the benefit of each of the Dermin License Agreements as licensor, and is entitled to exercise the rights of the licensor in each of the Dermin License Agreements;
e. MBI has not entered into any agreement granting any rights, interest or claim in or to any Sublicensed Patent Rights, if any, to any third party that conflicts with or is inconsistent with the rights granted to WPD pursuant to this Agreement;
f. to MBI’s knowledge, as of the Effective Date of this Agreement, the patents encompassed by the Sublicensed Patent Rights are, or upon issuance will be, valid, and enforceable patents, no third party is infringing or threatened to infringe any such Sublicensed Patent Rights, and no third party has challenged or threatened to challenge the scope, validity, or enforceability of such patents or Sublicensed Patent Rights, nor is MBI aware of any valid basis for any such challenge;
g. MBI will consult with and keep WPD reasonably informed of the status of any patent application or patent related to the Sublicensed Patent Rights, subject to Section 7.4 of this Agreement;
h. to MBI’s knowledge, as of the Effective Date of this Agreement, there are no third party patents or intellectual property rights which would be infringed by WPD’s exercise of the rights granted to WPD under this Agreement; and
i. to MBI’s knowledge, as of the Effective Date of this Agreement, there are no other patents, patent applications or intellectual property rights created or owned by MBI which would be infringed by WPD’s exercise of the rights granted to WPD under this Agreement.
10.3 WPD understands that the Sublicensed Patent Rights may have been developed under a funding agreement with the Government and, if so, that the Government may have certain rights relative thereto. This Agreement is explicitly made subject to the Government's rights under any such agreement and any applicable law or regulation. To the extent that there is a conflict between any such agreement, applicable law or regulation and this Agreement, the terms of such Government agreement, applicable law or regulation shall prevail. To MBI’s knowledge, as of the Effective Date of this Agreement there are no funding agreements with the Government under which any of the Sublicensed Patent Rights were developed.
10.4 WPD understands and acknowledges that certain rights and interests to substantial portions of the Sublicensed Subject Matter have been licensed to Dermin pursuant to the Dermin License Agreements and Dermin has certain rights relative thereto that conflict with rights granted herein. This Agreement is explicitly made subject to the rights granted to Dermin pursuant to the Dermin License Agreements, and the rights granted to WPD shall be junior to such rights granted to Dermin. WPD hereby acknowledges that it has received and reviewed the Dermin License Agreements.
10.5 WPD hereby acknowledges that it has received and reviewed the MD Xxxxxxxx License Agreements.
10.6 WPD understand and agrees that, except as set out in section 10.2 of this Agreement, MBI, by this Agreement, makes no representation as to the enforcement may operability or fitness for any use, safety, efficacy, approvability by regulatory authorities, time and costs of development, patentability, and/or breadth of the Sublicensed Subject Matter. Except as set out in section 10.2 of this Agreement, MBI, by this Agreement, also makes no representation as to whether any patent covered by the Sublicensed Patent Rights is valid or as to whether there are any patents now held, or which will be subject to bankruptcyheld by others or by MBI in the Sublicensed Field. Except as set out in section 10.2 of this Agreement, insolvencyMBI does not make any representation that the inventions contained in Sublicensed Patent Rights do not infringe any other patents now held or that will be held by others.
10.7 WPD, reorganizationby execution hereof, moratorium acknowledges, covenants and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether agrees that WPD has not been induced in any action at law way by MBI or proceeding in equityemployees of MBI to enter into this Agreement, and subject to the availability further represents that WPD is entering into this Agreement voluntarily.
10.8 Upon execution of this Agreement, WPD will provide MBI with a complete schedule of the remedy equity ownership of specific performance or WPD, and further agrees to update such equity ownership schedule within 30 days after the completion of any other equitable remedy or relief to enforce any right thereundereach calendar quarter after the date hereof.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby represents (a) Each of the Parties hereto represents, warrants and warrants tocovenants, as applicable, to the other, with respect to facts and covenants and agrees withissues relating to it, the Administrative Agent and the Lenders that:
A. The execution (i) it is duly organized and delivery in good standing under the laws of the jurisdiction of its organization;
(ii) it has full power and authority to carry out all of the transactions contemplated hereby;
(iii) it shall comply with all applicable laws, including the Communications Laws and state, local and federal rules and regulations, governing the business, ownership, management and operations under this Lease Agreement; and
(iv) all requisite resolutions and other authorizations necessary for its execution, delivery, performance and satisfaction of this Amendment and the Loan Documents to which any Loan Party is a party Lease Agreement have been duly authorized by all requisite action on the part of such Loan Party.adopted and complied with; and
B. The representations and warranties of the Loan Parties contained in the Credit (v) this Lease Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, is its valid and binding obligation of each Loan Party signatory theretoagreement, enforceable against it in accordance with its respective termsthe terms of this Lease Agreement.
(b) Lessor further represents and warrants to Lessee as follows:
(i) Lessor is the exclusive holder of each of the FCC Licenses, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium free and similar laws affecting the rights and remedies clear of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityall liens, and subject no other person has any right, title or interest in or to the availability any of the remedy FCC Licenses. The FCC Licenses have been granted to Lessor by Final Order and are in full force and effect. “Final Order” means action by the FCC or its staff acting under delegated authority as to which a) no request for stay by the FCC, as applicable, of specific performance the action is pending, no such stay is in effect, and, if any deadline for filing any such request is designated by statute or regulation, such deadline has passed; b) no timely petition for review, rehearing or reconsideration of the action is pending before the FCC, and the time for filing any other equitable remedy such petition has passed; c) the FCC does not have the action under reconsideration on its own motion and the time for such reconsideration has passed; and d) no appeal to a court, or relief to enforce request for stay by a court, of the FCC’s action, as applicable, is pending or in effect, and, if any right thereunderdeadline for filing any such appeal or request is designated by statute or rule, it has passed.
Appears in 1 contract
Samples: GSM Operating Agreements (Dobson Communications Corp)
Representations, Warranties and Covenants. The Borrower (a) Each of the Parties hereby represents and warrants to, and covenants and agrees with, to the Administrative Agent and the Lenders other Party that:
A. (i) this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms. The execution execution, delivery, and delivery performance of this Amendment and the Loan Documents Agreement by such Party does not conflict with any company bylaw, agreement, instrument, or understanding, oral or written, to which any Loan Party it is a party have Party or by which it is bound, nor violate [*] = Certain confidential information contained in this document, marked by brackets, has been duly authorized by all requisite action on omitted and filed separately with the part of such Loan Party.
B. The representations Securities and warranties Exchange Commission pursuant to Rule 24b-2 of the Loan Parties contained in Securities Exchange Act of 1934, as amended. any law or regulation of any court, Governmental Body, or administrative or other agency having jurisdiction over it;
(ii) such Party has not, and during the Credit Agreement Term will not, grant any right to any Third Party relating to its respective Patents and Know-How which would conflict with the rights granted to the other Loan Documents are true Party hereunder; and
(iii) such Party will at all times and correct in all material respects on comply with all Applicable Laws relating to its activities under this Agreement.
(iv) such Party shall implement appropriate processes and controls with respect to technology and work flow methodologies in connection with its activities under or in connection with this Agreement so as to protect the security and privacy of personally identifiable information in accordance with Applicable Laws.
(b) Revance represents, warrants and covenants as of the date of this Amendment as though made at and Effective Date (or as of such dateother/additional time as may be explicitly specified below) to Fosun that:
(i) Revance is the sole and exclusive owner, except or exclusive licensee, of the entire right, title and interest in the Revance Patents existing as of the Effective Date and during the Term. Revance has all rights necessary to grant the licenses under the Revance Technology existing as of the Effective Date and during the Term that it grants to Fosun in this Agreement. The Revance Patents are not subject to any encumbrance, lien or claim of ownership by any Third Party. To Revance’s Knowledge, the Revance Technology had not infringed and will not infringe any Intellectual Property Rights of any Third Party in the Territory.
(ii) To Revance’s Knowledge, all applicable fees due to patent authorities with respect to the extent filing and prosecution of the Revance Patents existing as of the Effective Date have been paid on or before the due date for payment (aas such due date may be extended in accordance with Applicable Law or patent authority rules and regulations) and will be paid in time during the Term.
(iii) As of the Effective Date, to Revance’s Knowledge, there is no actual or threatened infringement or misappropriation of the Revance Technology by any Person.
(iv) Revance has not been debarred by the FDA, is not subject to any similar sanction of other Regulatory Health Authorities in the Territory, and is not subject to any such representations debarment or similar sanction by any such Regulatory Health Authority, and warranties are made with reference to an earlier dateRevance has not used, and will not engage, in which case each any capacity, in connection with this Agreement, any Person who either has been debarred by such representation a Regulatory Health Authority, or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a). Revance shall inform Fosun in writing immediately if it or any Person engaged by Revance who is performing services under this Agreement is debarred or is the subject of a conviction described in Section 306 of the FFDCA (21 U.S.C. §335a) or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Revance’s Knowledge, [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and warranty shall be true filed separately with the Securities and correct in all material respects Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. is threatened, relating to the debarment or conviction of Revance or any such Person performing services hereunder.
(c) Fosun represents, warrants and covenants as of the Effective Date (or as of such date only other/additional time as may be explicitly specified below) to Revance that:
(i) Fosun has not been debarred by the FDA (and (b) inaccuracies resulting from transactions prior is not subject to any similar sanction of other Regulatory Health Authorities in the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined belowTerritory), no Loan Party has and is not subject to any groundssuch debarment or similar sanction by any such Regulatory Health Authority, and hereby agrees Fosun has not to challenge (or to allege or to pursue any matterused, cause or claim arising under or with respect to)and will not engage, in any case based upon acts capacity, in connection with this Agreement, any Person who either has been debarred by such a Regulatory Health Authority, or omissions is the subject of a conviction described in Section 306 of the Administrative Agent FFDCA (21 U.S.C. §335a). Fosun shall inform Revance in writing immediately if it or any Lender, Person engaged by Fosun who is performing services under this Agreement is debarred or is the effectiveness, genuineness, validity, collectibility or enforceability subject of a conviction described in Section 306 of the Credit Agreement FFDCA (21 U.S.C. §335a), or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Fosun’s Knowledge, is threatened, relating to the debarment or conviction of Fosun or any such Person performing services hereunder.
(ii) To the extent permissible under Applicable Laws, each employee and contractor of Fosun performing obligations under this Agreement shall, prior to conducting any such obligations hereunder, be obligated by Applicable Law, or written contract to (i) promptly disclose to Fosun of all inventions and Know-How conceived or reduced to practice by such employee or contractor during any performance under this Agreement, (ii) automatically assign to Fosun all right, title and interest in and to all such inventions and Know-How and all Intellectual Property Rights therein, including all Product-related Inventions and Product-related Data, and (iii) adhere to similar obligations of confidentiality as are set forth in this Agreement. Fosun shall not knowingly engage in any activities that use the other Loan Documents, inventions covered or claimed in the Obligations, the Liens securing any of the ObligationsRevance Patents, or any Revance Know-How a manner that is outside the scope of the terms or conditions of any Loan Documentlicense rights expressly granted to it hereunder.
E. (d) Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject Parties hereby covenants to the availability of the remedy of specific performance other Party that:
(i) Revance shall perform, or of any cause its Affiliates or other equitable remedy licensees or relief sublicensee to enforce any right thereunderperform, its obligations and responsibilities under this Agreement in compliance with this Agreement, all Applicable Laws, applicable FDA (or foreign equivalent) requirements, including, without limitation, then-current GLP and GCP.
(ii) Fosun shall perform, or cause its Affiliates or Sublicensee to perform, its obligations and responsibilities under this Agreement in compliance with this Agreement, all Applicable Laws, applicable NMPA (or foreign equivalent) requirements, including, without limitation, then-current GLP and GCP.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower 5.1 Each Party hereby represents and warrants toto the other Party as of the Commencement Date, as follows:
5.1.1 such Party (i) has the power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and covenants and agrees with, (ii) has taken all necessary action on its part required to authorize the Administrative Agent and the Lenders that:
A. The execution and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have Agreement;
5.1.2 this Agreement has been duly authorized by all requisite action executed and delivered on the part behalf of such Loan Party.
B. The representations Party and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the a legal, valid and binding obligation of each Loan such Party signatory thereto, enforceable against it and is in accordance with its respective termsterms subject to the effects of bankruptcy, except as insolvency or other laws of general application affecting the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium of creditor rights and similar laws judicial principles affecting the rights availability of specific performance and remedies of creditors generally or the application of general principles of equity, whether in any action enforceability is considered a proceeding at law or proceeding equity;
5.1.3 such Party is not aware of any pending or threatened litigation (and has not received any communication relating to any pending or threatened litigation) that alleges that such Party’s activities related to this Agreement have violated, or that by conducting the activities as contemplated in equitythis Agreement such Party would violate, any of the Intellectual Property rights of any Person (after giving effect to the license grants in this Agreement);
5.1.4 all necessary consents, approvals and authorizations of all regulatory and governmental authorities and other Persons required to be obtained by such Party in connection with the execution and delivery of this Agreement and the performance of its obligations under this Agreement have been obtained (other than such consents, approvals and authorizations that such Party will obtain in the course of performing its obligations under this Agreement); and
5.1.5 the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (i) do not conflict with or violate in any material way any requirement of Applicable Law, (ii) do not conflict with or violate any provision of the articles of incorporation, bylaws, limited partnership agreement or any similar instrument of such Party, and subject (iii) do not conflict with, violate, or breach or constitute a default or require any consent under, any material contractual obligation or court or administrative order by which such Party is bound.
5.2 Ethicor has not, directly or indirectly, offered, promised, paid, authorized or given, and will not in the future, offer, promise, pay, authorize or give, money or anything of value, directly or indirectly, to any Government Official (as hereinafter defined) or Other Covered Party (as hereinafter defined) for the availability purpose of: (i) influencing any act or decision of the remedy Government Official or Other Covered Party; (ii) inducing the Government Official or Other Covered Party to do or omit to do an act in violation of specific performance a lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official or Other Covered Party to influence the act or decision of a government or government instrumentality, in order to obtain or retain business, or direct business to, any other equitable remedy or relief Person, in any way related to enforce any right thereunderthis Agreement.
Appears in 1 contract
Samples: Exclusive License and Distribution Agreement (Ligand Pharmaceuticals Inc)
Representations, Warranties and Covenants. The Borrower parties hereby represents represent and warrants warrant that: (i) each party has the legal right and authority to enter into this agreement; (ii) each party’s performance and the rights granted to the other party hereunder shall not conflict with or violate any commitment or agreement that a party has to any other person or entity; (iii) each party shall perform its duties fully and to the best of its abilities; and (iv) the materials provided by one party to the other party shall not violate any law nor infringe upon nor violate any rights of any person, firm, corporation or entity including, but not limited to, the right of privacy, right of publicity, or the right against libel or slander. Unless otherwise set forth in this Agreement, Licensor represents, warrants and covenants and agrees with, the Administrative Agent and the Lenders to Licensee that:
A. The execution a. it is the legal and delivery of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties beneficial owner of the Loan Parties contained entire right, title and interest in and to the Credit Software and Documentation, including all Intellectual Property Rights relating thereto;
b. it has obtained all necessary rights, licenses, and permissions in and to any third party software or materials that are included within the Software;
c. it has and throughout the license term will retain the unconditional and irrevocable right, power and authority to grant and perform the license hereunder the Software and Documentation, and Licensee's use thereof, is and throughout the license term will be free and clear of all encumbrances, liens and security interests of any kind;
d. neither its grant of the license, nor the Support and Maintenance (see section 11) or any other performance by or on behalf of Licensor under this Agreement does or to its knowledge will at any time:
i. conflict with or violate any applicable Law; or
ii. require the consent, approval or authorization of any governmental or regulatory authority or other third party;
e. it has not granted and will not at any time during the license term grant any license or other contingent or non-contingent right, title or interest under or relating to the Software or Documentation that does or will conflict with or otherwise affect this Agreement, including any of Licensor's representations, warranties or performance or Licensee's rights or licenses hereunder;
f. when used by Licensee or any Authorized Licensee User in accordance with this Agreement and the Documentation, no Software or Documentation as delivered by Licensor does or will:
g. Licensor will not knowingly provide any Software that contains:
i. any virus, trojan horse, worm, backdoor or other Loan Documents are true and correct in all material respects on and as software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or
ii. time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the date passage of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted time or under the Loan Documentspositive control of any person, as applicable.or otherwise deprive Licensee of its lawful right to use such software; or
C. Both before and after giving effect to this Amendmentiii. any software, no Default documentation, technology or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below)other technical data, no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility products that include or enforceability of the Credit Agreement or use any of the other Loan Documentsforegoing, the Obligationsexport, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the Liens securing any of the ObligationsUS Export Administration Act and its associated regulations;
h. it will perform all services, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legalif applicable, valid in a timely, skillful, professional and binding obligation of each Loan Party signatory thereto, enforceable against it workmanlike manner in accordance with its respective termsgenerally recognized industry standards and practices for similar services, except as using personnel with the enforcement may be subject to bankruptcyrequisite skill, insolvency, reorganization, moratorium experience and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityqualifications, and subject will devote adequate resources to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereundermeet its obligations under this Agreement.
Appears in 1 contract
Samples: Software Licensing Agreement
Representations, Warranties and Covenants. Each Party hereby represents, warrants and covenants to the other as follows:
1.99.1 It is duly organized and validly existing under the laws of its jurisdiction of incorporation and it has full corporate power and authority and has taken all corporate action necessary to enter into and perform its obligations under this Agreement and the Related Agreements (when executed).
1.99.2 This Agreement and the Related Agreements (when executed) are a legal and valid obligation binding upon such Party and enforceable in accordance with their terms. The Borrower hereby execution, delivery and performance of this Agreement and the Related Agreements (when executed) by such Party do not and will not conflict with any other agreement, instrument or understanding, oral or written, by which it is bound, nor to its knowledge violate any law.
1.99.3 To its knowledge, other than Marketing Approvals for the Collaboration Products, no government authorization, consent, approval, license, exemption, filing or registration with any court or other governmental authority is or will be necessary for, or in connection with, the transaction contemplated by this Agreement or any Related Agreement, or for the performance by it of its obligations under this Agreement or a Related Agreement.
1.99.4 It and its Affiliates have not granted as of the Effective Date, and during the Term will not grant, any right, license, exclusivity, or other lien or encumbrance to any Intellectual Property Right that is necessary or useful for any Research, Development, Manufacture or Commercialization of any Collaboration Product in the Field in any jurisdiction which would cause such Intellectual Property Right to not be Controlled by such Party or the Affiliate for purposes of the licenses to the other Party under this Agreement or a Related Agreement; and it and its Affiliates will not, during the Term, encumber any such Intellectual Property Rights with any lien or encumbrance unless the lien or encumbrance is expressly subject to this Agreement and the Related Agreements.
1.99.5 Each Party represents and warrants tothat it has not been debarred or the subject of debarment proceedings by any Regulatory Authority. Neither Party shall knowingly use in connection with the Research, and covenants and agrees withDevelopment, the Administrative Agent and the Lenders that:
A. The execution and delivery of Manufacture or Commercialization under this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan DocumentsRelated Agreement any employee, the Obligations, the Liens securing any of the Obligations, consultant or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally investigator that has been debarred or the application subject of principles of equity, whether in debarment proceedings by any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunderRegulatory Authority.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower In consideration of the limited agreement of the Agent and the Lenders to continue to forbear from the exercise of their rights and remedies as set forth above, each Credit Party hereby represents and warrants to, and covenants and agrees with, to the Administrative Agent and the Lenders thatas of the date hereof as follows:
A. 1. The execution execution, delivery and delivery performance of this Amendment by such Credit Party: (a) is within its organizational power; (b) has been duly authorized by all necessary or proper corporate and shareholder action; (c) does not contravene any provision of such Credit Party’s charter or bylaws or equivalent organizational documents; (d) does not violate any law or regulation, or any order or decree of any court or Governmental Authority; (e) does not conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party is a party or by which such Credit Party or any of its property is bound; (f) does not result in the creation or imposition of any Lien upon any of the property of such Credit Party other than those in favor of Agent pursuant to the Loan Documents; and (g) does not require the consent or approval of any Governmental Authority or any other Credit Party.
2. All Loan Documents, including without limitation, this Amendment, the Agreement, the First Amendment, the Second Amendment, the Credit Agreement and the Guaranties, constitute legal, valid and binding obligations of each Credit Party party thereto enforceable against each such Credit Party in accordance with the terms thereof. Each Credit Party hereby ratifies and confirms each of the Loan Documents to which any Loan such Credit Party is a party have been duly authorized by all requisite action on to and the part rights granted thereunder in favor of such Loan Partythe Agent and the Lenders, including its liability for the Obligations as defined therein.
B. 3. The representations Credit Parties and warranties of the Loan Parties contained in Lenders hereby agree that the decision by the Agent and the Lenders to continue to grant the forbearance as outlined herein is not and shall not be deemed to constitute an undertaking by the Agent and the Lenders to forbear or refrain from exercising any and all rights and remedies available to them under the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as under applicable law upon the occurrence of any Forbearance Default. Additionally, notwithstanding the agreement of the date of Agent and the Lenders to enter into this Amendment as though made at Amendment, the Agent and as of such datethe Lenders hereby advise the Credit Parties that, except to the extent of the Agent and the Lenders’ forbearance expressly referenced herein through the Amended Forbearance Period specified in this Agreement, the Agent and Lenders require strict compliance with all of the terms and conditions of the Credit Agreement and the other Loan Documents; provided, however, that the Agent or the Lenders shall not be required to issue any notices otherwise required by the Credit Agreement with respect to the Specified Events of Default during the term of this Agreement.
4. Each Credit Party further acknowledges and agrees that: (ai) such representations the Specified Events of Default have occurred or will occur and warranties are made with reference continue, and shall not be deemed to an earlier datehave been waived, cured or eliminated, in which case each such representation whole or in part, by this Amendment, and warranty shall be true the Agent and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior the Lenders expressly reserve rights with respect to the date hereof which were expressly permitted under Specified Events of Default, subject only to the terms in the Credit Agreement, the other Loan Documents and this Agreement; (ii) the parties have not entered into a mutual disregard of the terms and provisions of the Credit Agreement and the other Loan Documents, or engaged in any course of dealing in variance with the terms and provisions of the Credit Agreement and the Loan Documents, within the meaning of any applicable law of the State of New York, or otherwise; and (iii) as applicableof the Commitment Termination Date, principal in the amount set forth on Schedule A attached hereto, plus accrued interest was due and owing, by the Borrower under the Credit Agreement and guaranteed by the Guarantors under the Guaranties.
C. Both before 5. Each Credit Party expressly acknowledges and after giving effect to this Amendment, no Default or Event of Default agrees that the Credit Agreement and other Loan Documents are valid and enforceable by the Agent and the Lenders and expressly reaffirms its obligations under the Credit Agreement and other Loan Documents (including the Guaranties). Each Credit Party agrees that it shall have occurred and be continuing.
D. As of not dispute the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility validity or enforceability of the Credit Agreement and other Loan Documents (including the Guaranties) or any of its obligations thereunder, or the validity, priority, enforceability or extent of the Agent on behalf of the Lenders’ security interest in or lien against any item of Collateral under the Credit Agreement and other Loan Documents.
6. As further consideration to induce the Agent and the Lenders to execute, deliver and perform this Amendment, each Credit Party represents and warrants that there are no claims, causes of action, suits, debts, obligations, liabilities, defenses, counterclaims, demands of any kind, character or nature whatsoever, fixed or contingent, which such Credit Party may have, or claim to have, against the Lenders or the Agent in connection with the Credit Agreement and Loan Documents, and such Credit Party hereby releases, acquits and forever discharges the Agent and each Lender and its respective agents, employees, officers, directors, servants, representatives, attorneys, affiliates, successors and assigns (collectively, the Obligations“Released Parties”) from any and all liabilities, claims, suits, debts, causes of action and the Liens securing like of any kind, character or nature whatsoever, known or unknown, fixed or contingent, in connection with the Credit Agreement and Loan Documents, that the Credit Party may have, or claim to have, against each of the Obligations, or any such Released Parties from the beginning of time until and through the terms or conditions dates of any Loan Documentexecution and delivery of this Agreement.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower Each of the Credit Parties hereby represents and warrants to, and covenants and agrees with, the Administrative Agent and the Lenders thatLender as follows:
A. (a) Each Credit Party is in good standing in its jurisdiction of incorporation or formation and is duly qualified in each jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect, and has all requisite power and authority to execute and deliver this Second Amendment to Fifth Amendment and Waiver and to perform this Second Amendment to Fifth Amendment and Waiver and the Credit Agreement (as modified by the Fifth Amendment and Waiver (as amended hereby)).
(b) The execution and delivery of this Second Amendment to Fifth Amendment and Waiver and the Loan Documents performance of this Second Amendment to which any Loan Party is a party Fifth Amendment and Waiver and the Credit Agreement (as modified by the Fifth Amendment and Waiver (as amended hereby)) (i) have been duly authorized by all requisite action on of the part Credit Parties and (ii) will not (A) contravene the terms of any Credit Party’s charter, bylaws or other organizational documents, (B) violate any provision of applicable law, (C) conflict with or result in any material breach or contravention of, or the creation of any Lien (other than any Permitted Encumbrance) under, any document evidencing any material Contractual Obligation to which any Credit Party is a party or any order, injunction, writ or decree of any governmental authority to which any Credit Party or its property is subject, or (D) require any approval of any holder of Equity Interests of a Credit Party or any approval or consent of any Person under any Material Contract of any Credit Party, other than consents or approvals that have been obtained and that are still in force and effect. This Second Amendment to Fifth Amendment and Waiver has been duly executed and delivered by each Credit Party party hereto.
(c) No registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority is required in connection with the execution and delivery by it of this Second Amendment to Fifth Amendment and Waiver and the performance by it of this Second Amendment to Fifth Amendment and Waiver and the Credit Agreement (as modified by the Fifth Amendment and Waiver (as amended hereby)) or the documents and instruments executed in connection herewith, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect.
(d) Each of the Credit Parties represents and warrants that the execution and delivery by each of the Credit Parties of this Second Amendment to Fifth Amendment and Waiver and the performance by each of the Credit Parties of this Second Amendment to Fifth Amendment and Waiver and the Credit Agreement (as modified by the Fifth Amendment and Waiver (as amended hereby)) and the documents and instruments delivered in connection therewith have been duly authorized by all necessary corporate action and that this Second Amendment to Fifth Amendment and Waiver and the Credit Agreement (as modified by the Fifth Amendment and Waiver (as amended hereby)) is a legal, valid and binding obligation of such Loan Credit Party, enforceable against such Credit Party in accordance with its terms, except as the enforcement thereof may be subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law).
B. The (e) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein has been issued and remains in force by any Governmental Authority against any Borrower, any Guarantor, Agent, or the Lender.
(f) No Default or Event of Default has occurred and is continuing as of the date of the effectiveness of this Second Amendment to Fifth Amendment and Waiver and after giving effect thereto, and no condition exists which constitutes a Default or an Event of Default.
(g) Each of the Credit Parties hereby certifies that each of the representations and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are (as amended through the date hereof) is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment hereof as though if made at on the date hereof, notwithstanding the reference to Closing Date in such representations and as of such datewarranties, except to the extent (a) that any such representations and warranties are made with reference representation or warranty is stated to relate solely to an earlier date, in which case each such representation and or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of such date only earlier date.
(h) This Second Amendment to Fifth Amendment and Waiver has been entered into without force or duress, of the free will of each Credit Party, and the decision of each Credit Party to enter into this Second Amendment to Fifth Amendment and Waiver is a fully informed decision and such Credit Party is aware of all legal and other ramifications of each decision.
(bi) inaccuracies resulting from transactions prior Each Credit Party has read and understands this Second Amendment to Fifth Amendment and Waiver, has consulted with and been represented by independent legal counsel of its own choosing in negotiations for and the preparation of this Second Amendment to Fifth Amendment and Waiver, has read this Second Amendment to Fifth Amendment and Waiver in full and final form, and has been advised by its counsel of its rights and obligations hereunder.
(j) The security interests granted pursuant to the date hereof Collateral Documents in the Collateral continue to be valid, binding, and enforceable security interests which were expressly secure the Obligations and the Liens created by the Collateral Documents in the Collateral constitute fully perfected Liens in favor of the Agent (subject only to the Liens permitted under the Loan Documents, as applicableCredit Agreement).
C. Both before (k) The Credit Parties shall deliver to Agent and after giving effect the Lenders, on or prior to this AmendmentJuly 10, no Default or Event 2017, the monthly financial statements for the months of Default shall have occurred April 2017 and be continuing.
D. As May 2017 required pursuant to clause (a) of Annex E to the Amendment Closing Date (as defined below), no Loan Party has any groundsCredit Agreement, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability failure of the Credit Agreement or any Parties to timely deliver such financial statements shall result in an immediate Event of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan DocumentDefault.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower a. Each Party hereby covenants, represents and warrants toto the others that (i) each person assigned to perform the services and/or the development work shall have the proper skill, training and covenants background so as to be able to perform the such services and/or development work by such Party in a competent and agrees withprofessional manner and (ii) all services and/or development work and any work product and other materials or documentation delivered under this Agreement by such Party shall have been completed in a thorough and professional manner.
b. Each Party hereby covenants, represents and warrants to the Administrative Agent other Parties that it has the corporate power and the Lenders that:
A. The execution authority to execute, deliver and perform this Agreement and other instruments and documents required or contemplated herein. Such execution, delivery of this Amendment and the Loan Documents to which any Loan Party is a party performance have been duly authorized by all requisite necessary action on the part of such Loan party, do not and will not require the approval of the shareholders of such Party and do not and will not contravene the Certificate of Incorporation or By-Laws of such Party.
B. The representations c. Each Party represents and warranties warrants that it has obtained all of the Loan Parties contained in necessary authority, approvals and permissions including, but not limited to, the Credit approval of its board of directors (if necessary) to enter into this Agreement and to perform all of its duties and obligations pursuant to this Agreement.
d. Each Party warrants that they have the other Loan Documents are true right to grant the licenses set forth in this Section 9. In the event any Party breaches any of these warranties, any non-breaching Party may terminate this Agreement immediately and correct in all material respects on the breaching party shall indemnify and as hold harmless the non-breaching Parties for any claims, grievances, causes of the date of this Amendment as though made at and as action, suits, demands, actions, damages, costs or losses arising out of such datebreach. ***Confidential Treatment Requested 8 of 14
e. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, except to the extent (a) such representations and warranties are made with reference to an earlier dateNO PARTY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED PRODUCTS OF ANY KIND, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan DocumentsEXPRESS, as applicableIMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby (a) Seller covenants, represents and warrants toto Purchaser as follows:
(i) Seller is a duly organized and validly existing corporation in good standing and has all requisite power and authority to own its assets and carry on its business as and where now being conducted. Seller has full power and authority, and covenants has taken all action necessary, to execute and agrees with, the Administrative Agent and the Lenders that:
A. The execution and delivery of deliver this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit Purchase Agreement and the any and all other Loan Documents are true documents required or permitted to be executed or delivered by Seller in connection with this Purchase Agreement and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsfulfill Seller’s obligations under, and hereby agrees not to challenge consummate the transactions contemplated by, this Purchase Agreement, and no governmental authorizations or other authorizations are required in connection therewith;
(or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit ii) this Purchase Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, Seller enforceable against it Seller in accordance with its respective terms, except as the enforcement may be terms (subject to bankruptcy, insolvency, reorganization, moratorium and or similar laws affecting creditors’ rights generally);
(iii) neither the rights execution, delivery and remedies performance of creditors generally this Purchase Agreement nor the consummation of the transactions contemplated hereby (1) is prohibited by, or requires Seller to obtain any consent, authorization, approval or registration under any law, statute, rule, regulation, judgment, order, writ, injunction or decree which is binding upon Seller or (2) violates, conflicts with, results in a breach of, constitutes a default under, is prohibited by, or requires any additional approval under any instrument or agreement to which Seller is a party or by which it is bound or which affects the Loans which has not been obtained, except as provided in subsection (viii)(A) below regarding Participation Loans and except for any requirement that Purchaser enter into agreements to be bound by applicable Inter-creditor Agreements between Seller and holders of first mortgage liens securing certain Loans;
(iv) from and after the date of payment in full of the Purchase Price, Seller shall promptly remit to Purchaser any and all payments received by Seller from borrower or any other person or entity on account of or related to any obligation or liability arising under the Loan Documents; provided that prior to the date of payment in full of the Purchase Price, Seller shall retain, and Purchaser shall pay over to Seller, all such payments for application against the Seller Take-Back Loan;
(v) Seller shall promptly forward to Purchaser originals of any and all bills, invoices, insurance binders, policies or certificates, documents and other correspondence it receives relating to the Loans or the application of principles of equityLoan Documents; provided, whether in any however, that while Seller is providing assistance to Purchaser with servicing for the Loans, then the foregoing documents shall be forwarded as mutually agreed upon by the parties;
(vi) other than as set forth on the Disclosure Schedule to this Purchase Agreement, if any, there is no litigation or action at law or proceeding in equityequity pending or, to the best of Seller’s knowledge, threatened against it by any person or entity, and no proceeding of any kind is pending or, to the best of Seller’s knowledge, threatened by any federal, state or local governmental or administrative body, which will or might materially affect the Loans or Seller’s ability to consummate the transactions contemplated hereby;
(vii) as to each Loan, the following representations and warranties are true and correct to the best of Seller’s knowledge in all material respects as of the Closing Date:
(A) Except for those participation Loans indicated as such on Exhibit A hereto (the “Participation Loans”), Seller is the sole owner of each Loan and has full right to sell and assign each Loan anticipated to be sold by it hereunder without the consent of any third party, except such consent as has been obtained or will be obtained, and the Loans are free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Loans. Purchaser acknowledges, understands and agrees that the Participation Loans have participant owners (“Participants”) of the underlying notes and loan obligations, and Purchaser is fully informed as to, and hereby agrees to, Purchaser’s rights and responsibilities as partial owner and lead lender of the Participation Loans.
(B) All documents delivered by Seller with respect to the Loans are true, complete and correct originals or copies thereof, and all information supplied by Seller concerning the Loans is true and correct in all material respects, except that Seller makes no representation as to accuracy of information supplied by any borrower or guarantor under the Loan Documents.
(C) The files containing the Loan Documents (the “Loan Files”), which have been made available to Purchaser for review before the Closing Date, are materially complete and not missing any material information.
(D) Each Loan is in full force and effect and is valid and enforceable in accordance with its terms, There have been no modifications to the Loans, whether oral or written, other than those modifications included in the Loan Files or otherwise disclosed in writing to Purchaser.
(viii) Seller shall provide reasonable access to Purchaser to the Loan Documents from the Closing Date to facilitate servicing of the Loans, and Seller agrees that it shall provided reasonable staff and resources, such as data and loan processing, during such time to respond to such reasonable inquiries as Purchaser may have regarding the Loans and the Loan Documents and the servicing by Purchaser of the Loans.
(ix) Seller shall not enter into any modifications to Loan Documents after the Cutoff Date without the written approval of Purchaser, which approval may be withheld or conditioned in the sole discretion of Purchaser. Seller shall not communicate with the borrowers after the Closing Date, other than to facilitate servicing of the Loans, and shall direct borrowers to communicate directly with Purchaser.
(x) For purposes of Seller’s representations and warranties, the knowledge, acts, and omissions of Xxxxx Xxxxxx after February 8, 2008, his severance date with Seller, shall not be imputed to Seller.
(b) Purchaser hereby represents and warrants to Seller as follows:
(i) Purchaser (and Guarantor as to the Guaranty) has full power and authority, and has taken all action necessary, to execute and deliver this Purchase Agreement, the Seller Take-Back Note and the Security Agreement and any and all other documents required or permitted to be executed or delivered by Purchaser in connection with this Purchase Agreement, the Seller Take-Back Note and the Security Agreement (or by Guarantor in connection with the Guaranty) and to fulfill Purchaser’s obligations under, and to consummate the transactions contemplated by, this Purchase Agreement, the Seller Take-Back Note and the Security Agreement (or by Guarantor in connection with the Guaranty) and no governmental authorizations or other authorizations are required in connection therewith;
(ii) this Purchase Agreement, the Seller Take-Back Note and the Security Agreement constitute legal, valid and binding obligations of Purchaser enforceable against Purchaser in accordance with their terms (subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally), and the availability Guaranty constitutes such obligations so enforceable against Guarantor; and
(iii) neither the execution, delivery and performance of this Purchase Agreement, the Seller Take-Back Note and the Security Agreement nor the consummation of the remedy transactions contemplated hereby and thereby is prohibited by, or requires Purchaser to obtain any consent, authorization, approval or registration under any law, statute, rule, regulation, judgment, order, writ, injunction or decree which is binding upon Purchaser, and no such prohibition is applicable to and no such consent required with respect to Guarantor and the Guaranty.
(iv) After the Closing Date, Purchaser shall make all advances and disbursements necessary to fulfill any of specific performance or the lender’s (formerly Seller’s) funding obligations which are required for any of the Loans pursuant to the Loan Documents.
(v) Purchaser acknowledges it has been provided access to the Loan Files, and Purchaser is not aware of any breach by Seller of any representations or warranties set forth herein.
(c) Purchaser and Seller mutually agree as follows:
(i) On or before April 2, 2008, Seller and Purchaser shall jointly send letters to all borrowers under the Loans notifying them of the transfer of the loans to Purchaser and the servicing of the Loans by Purchaser with the assistance of Seller. The letters will include direction to contact Purchaser regarding any issues relating to the Loans other equitable remedy than servicing issues.
(ii) Upon receipt by Seller of its portion of any tax refunds due to Seller pursuant to forbearance or relief other loan agreements respecting the loan ending in number 1747 (or other loans to enforce any right thereunderrelated borrowers) that are in effect as of the Closing Date, Seller shall pay to Purchaser thirty percent (30%) of said funds.
Appears in 1 contract
Representations, Warranties and Covenants. The Borrower hereby represents (a) Each of the Issuer Entities, jointly and severally represents, warrants to, and covenants to AEIS and agrees withAEIS represents, warrants and covenants to the Administrative Agent Issuer Entities that: (i) it is duly organized, validly existing and in good standing under the Lenders that:
A. The execution laws of the state of its formation; (ii) the execution, delivery and delivery performance of this Amendment and the Loan Documents to which any Loan Party is a Agreement by such party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations authorized, do not violate its charter, by-laws or similar governing instruments or applicable law and warranties of the Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any groundsdo not, and hereby agrees not with the passage of time will not, conflict with or constitute a breach under any other agreement, judgment or instrument to challenge which it is a party or by which it is bound; (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit iii) this Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes is the legal, valid and binding obligation of each Loan Party signatory theretosuch party, enforceable against it such party in accordance with its respective terms; (iv) it will comply with all applicable federal and state laws, except regulations and rules and the rules of any applicable SRO, including but not limited to, FINRA rules and interpretations governing cash and non-cash compensation; and (v) it will comply with applicable AEIS policies governing cost reimbursement, current copies of which are available to the Issuer Entities from AEIS upon request.
(b) AEIS represents to the Issuer Entities that performance of the Cost Reimbursement Services for which reimbursement is received by AEIS is consistent with the activities permitted under AEIS’s FINRA membership agreement.
(c) Each of the Issuer Entities, jointly and severally, makes the representations, warranties and covenants in Section 2(kk) of the Selected Dealer Agreement for AEIS’s benefit to the same extent and on the same terms and conditions as the enforcement may be Issuer Entities have made such representations, warranties and covenants for Ameriprise’s benefit pursuant to Section 2(kk) of the Selected Dealer Agreement. For the avoidance of doubt, subject to bankruptcyAEIS’s execution and delivery to the Company and the Independent Valuation Firm (as defined in Section 2(kk) of the Selected Dealer Agreement) of an access and confidentiality agreement, insolvencysubstantially in the form attached to the Selected Dealer Agreement as Exhibit B, reorganizationAEIS shall be permitted to share any documents and other information provided to it pursuant to Section 2(kk) of the Selected Dealer Agreement with Ameriprise, moratorium and similar laws affecting and, following the rights and remedies Company’s disclosure of creditors generally or the application valuation in the SEC Disclosure Documents (as defined in Section 2(kk) of principles of equity, whether in any action at law or proceeding in equitythe Selected Dealer Agreement), and subject to the availability fair disclosure requirements of Regulation FD and the provisions of any non-disclosure agreement between AEIS and the Independent Valuation Firm, nothing shall preclude Ameriprise from providing the name of the remedy Independent Valuation Firm and/or a summary of specific performance its review to its clients and/or its financial advisors.
(d) The Issuer Entities shall be required to deliver or cause to be delivered to AEIS any document required to be delivered to Ameriprise under Section 7 of the Selected Dealer Agreement. For the avoidance of doubt, any other equitable remedy or relief document required to enforce any right thereunderbe delivered to Ameriprise pursuant to Section 7 of the Selected Dealer Agreement may be dually addressed to Ameriprise and AEIS in order to satisfy the requirements of this Section 6(d).
Appears in 1 contract
Samples: Cost Reimbursement Agreement (Hines Global Income Trust, Inc.)
Representations, Warranties and Covenants. The Borrower Each Credit Party signatory hereto hereby represents and represents, warrants to, and covenants and agrees with, the Administrative to Agent and the Lenders thateach Lender as follows:
A. The execution (a) the execution, delivery and delivery performance by each of the Credit Parties signatory hereto of this Amendment and the Loan Documents to which any Loan Party is a party have been duly authorized by all requisite action on necessary action, and do not and will not:
(i) contravene the part terms of any of that Person’s Organizational Documents;
(ii) conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Credit Party is a party or any order, injunction, writ or decree of any Governmental Authority to which such Credit Party or its Property is subject; or
(iii) violate any material Requirement of Law in any material respect;
(b) such Credit Party has the power and authority to execute, deliver and perform its obligations under this Amendment and the Loan Party.Agreement, as amended hereby;
B. The (c) this Amendment constitutes the legal, valid and binding obligations of each such Credit Party which is a party hereto enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;
(d) after giving effect to this Amendment and the transactions contemplated hereby, each of the representations and warranties of the Loan Parties contained in the Credit Loan Agreement and the other Loan Documents are is true and correct in all material respects on and as of the date of this Amendment hereof as though if made at and as of such date, on the date hereof (except to the extent (a) such for representations and warranties are made with reference to an earlier that speak as of a specific date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and specific date); and
(be) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuingexists or would result from the transactions contemplated by this Amendment.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the legal, valid and binding obligation of each Loan Party signatory thereto, enforceable against it in accordance with its respective terms, except as the enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equity, and subject to the availability of the remedy of specific performance or of any other equitable remedy or relief to enforce any right thereunder.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
Representations, Warranties and Covenants. The Borrower following representations, warranties and covenants are in addition to those made elsewhere in this Agreement.
(a) Each party hereby represents warrants and warrants tocovenants, and covenants and agrees withas applicable, to the Administrative Agent and the Lenders other that:
A. The execution (1) it has full power and delivery of authority under applicable law, and has taken all necessary actions, to enter into and perform this Amendment and Agreement; the Loan Documents to which any Loan Party person executing this Agreement on its behalf is a party have been duly authorized by all requisite action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the Credit empowered to execute and deliver this Agreement; and this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment as though made at and as of such date, except to the extent (a) such representations and warranties are made with reference to an earlier date, in which case each such representation and warranty shall be true and correct in all material respects as of such date only and (b) inaccuracies resulting from transactions prior to the date hereof which were expressly permitted under the Loan Documents, as applicable.
C. Both before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
D. As of the Amendment Closing Date (as defined below), no Loan Party has any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under or with respect to), in any case based upon acts or omissions of the Administrative Agent or any Lender, the effectiveness, genuineness, validity, collectibility or enforceability of the Credit Agreement or any of the other Loan Documents, the Obligations, the Liens securing any of the Obligations, or any of the terms or conditions of any Loan Document.
E. Each of the Loan Documents constitutes the its legal, valid and binding obligation of each Loan Party signatory theretoobligation, enforceable against it in accordance with its respective terms;
(2) no consent or authorization of, except filing with, or other act by or in respect of any governmental authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement; and
(3) the execution, performance and delivery of this Agreement by it will not violate any of its contractual obligations or any applicable laws, rules and regulations and will comply with all laws, rules and regulations of governmental and regulatory authorities applicable to it by virtue of entering into and performing this Agreement.
(b) Transfer Agent hereby represents, warrants and covenants to Service Organization, as applicable, that:
(1) it is duly registered as a transfer agent pursuant to the enforcement may be subject to bankruptcySecurities Exchange Act of 1934, insolvencyas amended (the "Exchange Act"); and
(2) the Funds are registered as investment companies under the Investment Company Act of 1940, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally or the application of principles of equity, whether in any action at law or proceeding in equityas amended, and subject the Shares are registered under the Securities Act of 1933, as amended.
(c) Service Organization hereby represents, warrants and covenants to Transfer Agent, as applicable, that:
(1) it is registered as a transfer agent or broker-dealer pursuant to the availability Exchange Act, or is not required to be so registered in order to perform the Services;
(2) it is a member of the remedy Financial Industry Regulatory Authority ("FINRA") or is not required to be a FINRA member and, if applicable, will comply with FINRA's Conduct Rules, including any requirements as to suitability of specific performance or Shares for customers;
(3) it will not be a "fiduciary" with respect to the provision of the Services for any other equitable remedy or relief plan as such term is defined in Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended ("BRISA"), and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code");
(4) its receipt of compensation and the provision of the Services under this Agreement will not constitute a non-exempt "prohibited transaction" as such term is defined in Section 406 of ERISA and Section 4975 of the Code;
(5) it has full authority to enforce any right thereunderact on behalf of its customers in the manner contemplated by this Agreement, and each time it so acts it shall be deemed to have restated this representation and warranty; and
(6) it has adopted an Anti-Money Laundering Program, which includes development of internal policies, procedures and controls to detect and prevent money laundering and that investment in the Funds is within the scope of its AML Program.
Appears in 1 contract
Samples: Soliciting Dealer Agreement (Aul American Unit Trust)
