Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that: (i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws; (iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; (iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement; (v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement; (vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement; (vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and (viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement. (b) On the Effective Date: (i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and (ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 8 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) : It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) ; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) ; This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) ; There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) ; No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) ; It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) ; It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) . On the Effective Date:
(i) : Each Party covenants to the other Party that, except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(iiIf Section 1.02(a) provides that the Generating Facility will be an Expanded CHP Facility or a Repowered CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility is a Qualifying Cogeneration Facility; If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as a Qualifying Cogeneration Facility and otherwise meets the requirements of a CHP Facility; and If the Generating Facility is an Existing Qualifying CHP Facility, the Seller represents and warrants to Buyer that the Power Rating of the Generating Facility equals the value set forth in Section 1.10.
Appears in 7 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. (a) On the Power Purchase Agreement Effective Date, each Party represents represents, warrants and warrants covenants to the other Party that:
(ia) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(iib) Except for all Permits in the case of Seller, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Power Purchase Agreement;
(c) The execution, delivery and performance of this Power Purchase Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawslaw, rule, regulation, order or the like applicable to it;
(iiid) This Power Purchase Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(ive) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, or any of its Related EntitiesAffiliates, any legal proceeding proceedings that could materially adversely affect its ability to perform under this Power Purchase Agreement;
(vf) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will would occur as a result of its entering into or performing its obligations under this Power Purchase Agreement;
(vig) It is acting for its own account, account and its decision to enter into this Power Purchase Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Power Purchase Agreement;
(vii) ; It has not relied on upon any promises, representations, statements or information of any kind whatsoever that are not contained in this Power Purchase Agreement in deciding to enter into this Power Purchase Agreement; and
(viiih) It has entered into this Power Purchase Agreement in connection with the conduct of its business and it has the capacity or ability to provide make or receive take delivery of the Power Product as contemplated by in this Power Purchase Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 7 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party The Company represents and warrants to the other Party thatInvestment Manager as follows:
(i) It is duly organized, validly existing the Company has full corporate power and in good standing under the laws of the jurisdiction of authority to execute and deliver this Agreement and to perform its formationobligations hereunder;
(ii) The this Agreement constitutes a binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and the Company do not violate (A) any law applicable to the Company, (B) any provision of the terms and conditions in its governing documentsconstituent documents of the Company, or (C) any contracts agreement or instrument to which it the Company is a party or any Applicable Laws;
(iii) This Agreement constitutes party, except for such violations as would not have a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in material adverse effect on the case ability of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability the Company to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(iv) no consent of any person, and no license, permit, approval or authorization of, exemption by, report to, or registration, filing or declaration with, any governmental authority is required by the Company in connection with the execution, delivery and performance of this Agreement other than those already obtained;
(v) the Company is an insurance company;
(vi) It the Company is acting not an investment company (as that term is defined in the Investment Company Act of 1940, as amended) nor exempt from the definition of investment company by reason of Section 3(c)(1) of such Act;
(vii) the Company is an “accredited investor” under Regulation D promulgated under the Securities Act of 1933, as amended;
(viii) the Company is a “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended, and the Company will promptly notify the Investment Manager if the Company ceases to be a QIB;
(ix) the Company is a “qualified purchaser” (“QP”) as defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended, and the Company will promptly notify the Investment Manager if the Company ceases to be a QP;
(x) no portion of the assets contained in the Portfolio constitute or will constitute “plan assets” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the regulations promulgated thereunder, or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) of any employee benefit plan or plan subject to ERISA or Section 4975 of the Code;
(xi) the Company has implemented anti-money laundering policies, procedures and systems that are designed to comply with the U.S. Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, as amended, and any other applicable anti-money laundering laws, regulations and sanctions programs (including those administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) including, without limitation, the list of specially designated nationals and blocked persons administered by OFAC as such list may be amended from time to time, and any other applicable sanctions programs) and the Company is in compliance with such applicable laws, regulations and programs;
(xii) the Company’s interest in any investment shall be acquired and/or is being acquired for its own accountaccount solely for investment and not with a view to resale or distribution thereof (unless otherwise provided in this Agreement) and the Company has such knowledge and experience in financial and business matters that the Company is capable of evaluating the merits and risks of the terms and conditions of this Agreement including those risks associated with the investment program described hereunder, the term, fee and expense structure provided for hereunder and is able to bear such risks, including a complete loss of capital;
(xiii) the Company acknowledges and agrees that, in accordance with Section 4, the Investment Manager shall under no circumstances act as custodian of the assets of the Portfolio or any securities or other investments purchased or sold for the Portfolio or cash pending contribution to or distribution from any such investment or take or have title to or possession of the assets of the Portfolio or any securities or other investments purchased or sold for the Portfolio. The Investment Manager shall not have the power or authority to amend the terms of any of the Company’s custody arrangements with respect to the Portfolio or related cash or to appoint a custodian without the Company’s prior written consent. The Company shall notify each Custodian prior to its appointment as a custodian to the Portfolio of the limitations with respect to the Investment Manager set out in this Section 8(a)(xiv);
(xiv) the Company acknowledges that the Investment Manager is not responsible for the management or diversification of the Company’s entire portfolio of investments and agrees that the only responsibility which the Investment Manager shall have with respect to such portfolio is to manage, within the applicable Investment Guidelines and in accordance with the terms of this Agreement, the investments in the Portfolio;
(xv) the Company has been given the opportunity to (A) ask questions of, and receive answers from, the Investment Manager and each of its decision representatives concerning the terms and conditions of, and other matters pertaining to, this Agreement and (B) obtain any additional information necessary to enter evaluate the merits and risks of entering into this Agreement is based upon its own judgmentthat the Investment Manager can acquire without unreasonable effort or expense;
(xvi) the Company has received, not carefully reviewed and understands the disclosures set forth in reliance upon the advice or recommendations Part 2 of the Investment Manager’s Form ADV filed with the U.S. Securities and Exchange Commission and the Supplemental Disclosure Memorandum delivered to the Company prior to the date of execution hereof, including the description of potential conflicts of interest and other Party risk factors associated with the provision of the services described herein; and
(xvii) each representation and it is capable warranty made herein by the Company shall be deemed made by the Company on a continual basis, as of assessing the merits of and understandingeach date this Agreement continues to be in effect, and understands the Company shall immediately notify the Investment Manager if any representation or warranty made herein ceases to be true in any material respect; provided that in the case of clause (x) the Company shall immediately notify the Investment Manager if the representation or warranty made in clause (x) ceases to be true in any respect.
(b) The Investment Manager represents and accepts warrants, and with respect to clauses (vi) and (vii) below, covenants, to the Company as follows:
(i) the Investment Manager has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
(ii) this Agreement constitutes a binding obligation of the Investment Manager, enforceable against the Investment Manager in accordance with its terms, conditions except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and risks other similar laws relating to or affecting creditors’ rights or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance of this Agreement by the Investment Manager do not violate (A) any law applicable to the Investment Manager, (B) any provision of the articles of incorporation or by-laws of the Investment Manager, or (C) any agreement or instrument to which the Investment Manager is a party, except for such violations as would not have a material adverse effect on the ability of the Investment Manager to perform its obligations under this Agreement;
(iv) no consent of any person, and no license, permit, approval or authorization of, exemption by, report to, or registration, filing or declaration with, any governmental authority is required by the Investment Manager in connection with the execution, delivery and performance of this Agreement other than those already obtained;
(v) the Investment Manager is registered under the Advisers Act as an “investment adviser”;
(vi) the assets in the account are and shall remain (A) the exclusive property of the Company; (B) held for the benefit of the Company; and (C) subject to the control of the Company (other than any such assets that are held in a reinsurance trust account, which shall be subject to the limitations of the applicable reinsurance trust agreement);
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in the Investment Manager shall continue to be registered under the Advisers Act as an “investment adviser” for as long as this Agreement is in deciding to enter into full force and effect or until this Agreement; andAgreement is otherwise terminated in accordance with Section 7;
(viii) It the Investment Manager (A) has entered into and shall maintain all required governmental and regulatory registrations and memberships necessary to carry out its obligations under this Agreement and to act as described in connection with the conduct of this Agreement and (B) has completed, obtained and performed (in each case, as applicable) all filings, approvals, authorizations, consents and examinations required by any government or governmental authority for its business and it has the capacity or ability to provide or receive the Power Product as acts contemplated by this Agreement.;
(bix) On the Effective Date:Investment Manager has established, maintained and implemented compliance policies and procedures reasonably designed to ensure compliance with the requirements of the Advisers Act and the rules and regulations promulgated thereunder;
(ix) Each Party covenants the Investment Manager has implemented anti-money laundering policies, procedures and systems that are designed to comply with the U.S. Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, as amended, and any other applicable anti-money laundering laws, regulations and sanctions programs (including those administered by OFAC including, without limitation, the list of specially designated nationals and blocked persons administered by OFAC as such list may be amended from time to time, and any other applicable sanctions programs) and the Investment Manager is in compliance with such applicable laws, regulations and programs;
(xi) there are no actions, suits, proceedings or formal investigations pending or, to the knowledge of any officer of the Investment Manager after reasonable inquiry, threatened against the Investment Manager or its principals, at law or in equity or before or by any federal, state, municipal or other Party thatgovernmental department, it has commission, board, bureau, agency or will timely acquire all instrumentality or any self-regulatory authorizations necessary for it organization or exchange, which could reasonably be expected to legally perform have a material adverse impact on the ability of the Investment Manager to comply with its obligations under this Agreement; and
(iixii) If Section 1.02(a) provides that each representation and warranty made herein by the Generating Facility is an Existing Qualifying FacilityInvestment Manager shall be deemed made by the Investment Manager on a continual basis, thenas of each date this Agreement continues to be in effect, Seller represents and warrants the Investment Manager shall immediately notify the Company if any representation or warranty made herein ceases to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitybe true in any material respect.
Appears in 6 contracts
Samples: Master Sma Agreement (SAFG Retirement Services, Inc.), Master Sma Agreement (SAFG Retirement Services, Inc.), Master Sma Agreement (SAFG Retirement Services, Inc.)
Representations, Warranties and Covenants. 1.1 The Builder acknowledges that the Buyer has entered into this Contract in full reliance on the representations set out in Clauses 1.2 and 1.3 and the Builder warrants that the statements contained in those Clauses are in all respects true and accurate.
1.2 Each party (ain either case, the “warrantor”) On the Effective Date, each Party represents and warrants to the other Party party that:
(i) It is duly organizedall acts, validly existing conditions and things required to be done, fulfilled and performed in good standing order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the laws of obligations expressed to be assumed by it in this Contract and (b) to ensure that the jurisdiction of its formation;
(ii) The executionobligations expressed to be assumed by it in this Contract are legal, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its termshave been done, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred fulfilled and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementperformed; and
(ii) If Section 1.02(ano legal proceedings have been started or (to the best of the warrantor’s knowledge and belief) provides that threatened which might have a material adverse effect on the Generating Facility is an Existing Qualifying Facility, then, Seller warrantor’s ability to perform its obligations under this Contract.
1.3 The Builder further represents and warrants to Buyer the Buyer:
(i) that neither the Generating Facility qualifies as an Existing Qualifying Facilityexecution of this Contract nor the exercise by the Builder of its rights and performance of its obligations under this Contract will result in any breach of any German or European Community law, regulation, rule, directive or treaty;
(ii) neither the Builder nor (to the best of the Builder’s knowledge, information or belief) any other person has (whether directly or indirectly) offered or paid or agreed to pay or give commission of any kind whatsoever in relation to or in connection with this Contract or any of the business transactions described in or contemplated by this Contract; and
(iii) that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of Germany and the European Community to enable it lawfully to enter into and perform its obligations under this Contract.
Appears in 6 contracts
Samples: Shipbuilding Contract (NCL CORP Ltd.), Shipbuilding Contract (NCL CORP Ltd.), Shipbuilding Contract (NCL CORP Ltd.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and;
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as a Qualifying Cogeneration Facility and otherwise meets the requirements of a CHP Facility; and
(iii) If the Generating Facility is an Existing Qualifying CHP Facility, Seller represents and warrants to Buyer that the Power Rating of the Generating Facility equals the value set forth in Section 1.09.
Appears in 4 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each 17.1 Each Party represents and warrants to the other Party that:
(ia) It Such Party is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction of its formationorganization;
(iib) The executionSuch Party has the full corporate power and is duly authorized to enter too, execute and deliver this Agreement, and to carry out and otherwise perform its obligations hereunder;
(c) This Agreement has been duly executed and delivered by, and is the legal and valid obligation binding upon such Party and the entry into, the execution and delivery of, and the carrying out and other performance of its obligations under this Agreement are within its powersby such Party (i) does not conflict with, have been duly authorized by all necessary action and do not violate or contravene or constitute any of the terms and conditions in its governing documentsdefault under, any contracts agreement, instrument or understanding, oral or written, to which it is a party party, including its certificate of incorporation or by‑laws, and (ii) does not violate applicable law or any Applicable Lawsjudgment, injunction, order or decree of any Governmental Authority having jurisdiction over it;
(iiid) This Agreement constitutes a legally valid and binding obligation enforceable against it No government authorization, consent, approval, license, exemption of or filing or registration with any court or Governmental Authority, under any applicable law currently in accordance with its termseffect, subject to any Equitable Defenses;
(iv) There is not pendingor will be necessary for, or to its knowledgein connection with, threatened against it orthe transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, in or for the case performance by such Party of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, Agreement and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the such other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementagreements; and
(viiie) It has entered into this Agreement in connection with the conduct Neither such Party, nor any of its business and it has the capacity employees, officers, subcontractors, or ability consultants who have rendered or will render services relating to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
Products; (i) Each Party covenants has ever been debarred or is subject or debarment or convicted of a crime for which an entity or person could be debarred by the FDA under 21 U.S.C. Section 335a (or subject to the a similar sanction of any other Party that, it has Governmental Authority) or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller has ever been under indictment for a crime for which a person or entity could be so debarred.
17.2 DAEWOONG represents and warrants to Buyer that the Generating Facility qualifies AEON as an Existing Qualifying Facility.follows;
Appears in 4 contracts
Samples: License & Supply Agreement (AEON Biopharma, Inc.), License & Supply Agreement (AEON Biopharma, Inc.), License & Supply Agreement (AEON Biopharma, Inc.)
Representations, Warranties and Covenants. (a) On [Intentionally Omitted].
(b) [Intentionally Omitted].
(c) Each of the Effective DateOwner Participant and First Security Bank, each Party National Association, in its individual capacity, represents and warrants to the other Party that:
parties to this Agreement that it is, and on the Delivery Date will be, a Citizen of the United States without making use of any voting trust, voting powers agreement or similar arrangement. The Owner Participant agrees, solely for the benefit of Lessee and the Loan Participants, that if (i) It is duly organizedit shall cease to be, validly existing and in good standing under the laws or believes itself likely to cease to be, a Citizen of the jurisdiction of its formation;
United States and (ii) The executionthe Aircraft shall or would therefore become ineligible for registration in the name of the Owner Trustee under the Federal Aviation Act and regulations then applicable thereunder, delivery then the Owner Participant shall (at its own expense and performance without any reimbursement or indemnification from Lessee) promptly effect a voting trust, voting powers agreement or other similar arrangement or take any other action as may be necessary to prevent any deregistration and to maintain the United States registration of the Aircraft. It is agreed that: (A) the Owner Participant shall be liable to pay on request to each of the other parties hereto and to each holder of a Secured Certificate for any damages suffered by any such other party or holder as the result of the representation and warranty of the Owner Participant in the first sentence of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any Section 8(c) proving to be untrue as of the terms Delivery Date; and conditions in its governing documents(B) the Owner Participant shall be liable to pay on request to Lessee, any contracts to Sublessee and the Loan Participants for any damages which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Sellermay be incurred by Lessee, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event Sublessee or circumstance will occur the Loan Participants as a result of the Owner Participant's failure to comply with its entering into or performing obligations pursuant to the second sentence of this Section 8(c). Each party hereto agrees, upon the request and at the sole expense of the Owner Participant, to cooperate with the Owner Participant in complying with its obligations under the provisions of the second sentence of this Agreement;
Section 8(c). First Security Bank, National Association, in its individual capacity, agrees that if at any time an officer or responsible employee of the Corporate Trust Department of First Security Bank, National Association, shall obtain actual knowledge that First Security Bank, National Association, has ceased to be a Citizen of the United States without making use of a voting trust, voting powers agreement or similar arrangement, it will promptly resign as Owner Trustee (vi) It if and so long as such citizenship is acting for its own accountnecessary under the Federal Aviation Act as in effect at such time or, if it is not necessary, if and its decision to enter into this Agreement is based upon its own judgmentso long as the Owner Trustee's citizenship would have any material adverse effect on the Loan Participants, not in reliance Lessee or the Owner Participant), effective upon the advice or recommendations appointment of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained a successor Owner Trustee in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection accordance with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.9.01
Appears in 3 contracts
Samples: Participation Agreement (Northwest Airlines Inc /Mn), Participation Agreement (Northwest Airlines Holdings Corp/Pred), Participation Agreement (Northwest Airlines Holdings Corp/Pred)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each , each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and.
(iic) If Section 1.02(a) provides that On the Generating Facility is an Existing Qualifying Facility, thenEffective Date, Seller represents and warrants to Buyer that the Generating Facility qualifies as is an Existing Qualifying Cogeneration Facility.
Appears in 3 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each 17.1 Each Party represents and warrants to the other Party that:
(ia) It Such Party is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction of its formationorganization;
(iib) The executionSuch Party has the full corporate power and is duly authorized to enter into, execute and deliver this Agreement, and to carry out and otherwise perform its obligations hereunder;
(c) This Agreement has been duly executed and delivered by, and is the legal and valid obligation binding upon such Party and the entry into, the execution and delivery of, and the carrying out and other performance of its obligations under this Agreement are within its powersby such Party (i) does not conflict with, have been duly authorized by all necessary action and do not violate or contravene or constitute any of the terms and conditions in its governing documentsdefault under, any contracts agreement, instrument or understanding, oral or written, to which it is a party party, including its certificate of incorporation or by-laws, and (ii) does not violate applicable law or any Applicable Lawsjudgment, injunction, order or decree of any Governmental Authority having jurisdiction over it;
(iiid) This Agreement constitutes a legally valid and binding obligation enforceable against it No government authorization, consent, approval, license, exemption of or filing or registration with any court or Governmental Authority, under any applicable law currently in accordance with its termseffect, subject to any Equitable Defenses;
(iv) There is not pendingor will be necessary for, or to its knowledgein connection with, threatened against it orthe transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, in or for the case performance by such Party of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, Agreement and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the such other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementagreements; and
(viiie) It has entered into this Agreement in connection with the conduct Neither such Party, nor any of its business and it has the capacity employees, officers, subcontractors, or ability consultants who have rendered or will render services relating to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
Products: (i) Each Party covenants has ever been debarred or is subject or debarment or convicted of a crime for which an entity or person could be debarred by the FDA under 21 U.S.C. Section 335a (or subject to the a similar sanction of any other Party that, it has Governmental Authority) or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller has ever been under indictment for a crime for which a person or entity could be so debarred.
17.2 DAEWOONG represents and warrants to Buyer that the Generating Facility qualifies EVOLUS as an Existing Qualifying Facility.follows:
Appears in 3 contracts
Samples: License & Supply Agreement (Evolus, Inc.), License & Supply Agreement (Evolus, Inc.), License & Supply Agreement (Evolus, Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and;
(ii) If Section 1.02(a) provides that the Generating Facility will be an Expanded CHP Facility or a Repowered CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility is a Qualifying Cogeneration Facility;
(iii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as a Qualifying Cogeneration Facility and otherwise meets the requirements of a CHP Facility; and
(iv) If the Generating Facility is an Existing Qualifying CHP Facility, the Seller represents and warrants to Buyer that the Power Rating of the Generating Facility equals the value set forth in Section 1.10.
Appears in 3 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. The Member hereby represents, warrants and covenants to the Company that the following statements are true and correct as of the Effective Date:
(a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It Member is duly organizedincorporated, organized or formed (as applicable), validly existing existing, and (if applicable) in good standing under the laws Law of the jurisdiction of its incorporation, organization or formation;
(ii) The ; and the Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery delivery, and performance of this Agreement are within its powers, by the Member have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawstaken;
(iiib) This Agreement constitutes a legally the Member has duly executed and delivered this Agreement, and it constitutes the legal, valid and binding obligation enforceable of the Member enforceable against it in accordance with its termsterms (except as may be limited by bankruptcy, subject to any Equitable Defensesinsolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);
(ivc) There the Member is not pendingacquiring its Membership Interest based upon its own investigation, or to its knowledge, threatened against it or, in and the case of Seller, any exercise by the Member of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event rights and the performance by such Member of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is will be based upon its own judgmentinvestigation, not in reliance upon the advice or recommendations analysis and expertise; its acquisition of the other Party and it its Membership Interest (i) is capable of assessing the merits of and understandingbeing made for its own account for investment, and understands not with a view to the sale or distribution thereof in violation of applicable securities Laws, (ii) is being made pursuant to a valid exemption from registration under the Securities Act and accepts any applicable state securities Laws and in accordance with those Laws, and (iii) does not subject the terms, conditions and risks of this AgreementCompany to regulation under the Investment Company Act;
(viid) It has that Member is (i) not relied on any promisesan Ainvestment company@ or company Acontrolled@ by an Ainvestment company@ within the meaning of the Investment Company Act, representationsand (ii) is exempt from, statements or information not subject to, regulation as a Aholding company@ or a Asubsidiary company@ of any kind whatsoever that are not contained a Aholding company,@ in this Agreement each case as such term is defined in deciding to enter into this Agreementthe Public Utility Holding Company Act of 1935, as amended; and
(viiie) It has entered into this Agreement in connection no facts exist with respect to that Member that will either (i) cause the conduct assets of its business and it has the capacity Company to be Aplan assets@ within the meaning of ERISA, or ability (ii) give rise to provide a Aprohibited transaction@ (within the meaning of Section 406(a) or receive the Power Product as contemplated by this Agreement.
(b) On of ERISA or Section 4975 of the Effective Date:
(iCode) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility which no exemption is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityavailable.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement
Representations, Warranties and Covenants. Each Pledgor represents, warrants and covenants, to the Agent and the other Secured Parties, insofar as the same relate to such Pledgor's assets, actions, statements and business, as follows:
(a) On the Effective Date, each Party represents and warrants to the other Party that:
Such Pledgor (i) It is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
; (ii) The is duly qualified and in good standing in every jurisdiction in which the nature of its business makes such qualification necessary and where the failure to so qualify has a reasonable likelihood of having a Material Adverse Effect; (iii) has all requisite corporate power and authority and the legal right to own, pledge, mortgage and operate its properties, and to conduct its business as now or currently proposed to be conducted; (iv) is in compliance with its certificate or articles of incorporation, by-laws and similar organizational documents; (v) is not in default under any material agreement such that there is a reasonable likelihood of such default having a Material Adverse Effect; (vi) is in compliance (except to the extent any noncompliance has no reasonable likelihood of having a Material Adverse Effect) with all Legal Requirements; and (vii) together with the other Pledgors and Borrowers, forms part of a group of companies that are closely related legally and economically, each deriving benefits from the other, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any is conducive to the business interests of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, Pledgor and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations pursuit of the other Party profits and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementcontinuity.
(b) On the Effective Date:
Each Person listed on Schedule I hereto: (i) Each Party covenants to is an entity duly organized, validly existing and in good standing under the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform laws of the jurisdiction of its obligations under this Agreementorganization; and
(ii) If Section 1.02(a) provides that is duly qualified to do business and in good standing in every jurisdiction in which the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that nature of the Generating Facility qualifies as an Existing Qualifying Facility.business it conducts makes such qualification necessary or desirable;
Appears in 2 contracts
Samples: Credit Agreement (Willbros Group Inc), Credit Agreement (Willbros Group Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, Buyer and each Party Seller each represents and warrants warrants, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any of the terms and conditions in its governing documentslaw, ordinance, charter, by-law or rule applicable to it or any contracts to agreement by which it is bound or by which any of its assets are affected.
(b) The Sellers jointly and severally represent and warrant to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by a party Seller to Buyer pursuant to this Agreement are either original documents or any Applicable Lawsgenuine and true copies thereof;
(ii) Each Seller is a separate and independent corporate entity from the Custodian, each Seller does not own a controlling interest in the Custodian either directly or through affiliates and no director or officer of such Seller is also a director or officer of the Custodian;
(iii) This Agreement constitutes a legally valid None of the Purchase Price for any Mortgage Loan will be used either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and binding obligation enforceable against it in accordance with its terms, subject Seller has not taken any action that might cause any Transaction to violate any Equitable Defensesregulation of the Federal Reserve Board;
(iv) There is not pendingEach Mortgage Loan was underwritten in accordance with the written underwriting standards of the Sellers furnished by Sellers to Buyer, or and no change to its knowledge, threatened against it or, in such underwriting standards has occurred since the case date of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability the last written revision to perform under this Agreementsuch standards was furnished to Buyer by Sellers;
(v) No Event A Seller shall be at the time it transfers to Buyer any Mortgage Loans for any Transaction the legal and beneficial owner of Default with respect to it has occurred and is continuing and no such event Mortgage Loans, free of any lien, security interest, option or circumstance will occur as a result of its entering into or performing its obligations under this Agreementencumbrance;
(vi) It is acting for its own account, and its decision Sellers used no selection procedures that identified the Mortgage Loans relating to enter into this Agreement is based upon its own judgment, not a Transaction as being less desirable or valuable than other comparable assets in reliance upon Seller’s portfolio on the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreementrelated Purchase Date;
(vii) It has not relied on any promisesEach Transaction involving Mortgage Loans is entered into in contemplation of liquidation, representationssale or other disposition, statements or information the issuance of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementasset backed securities; and
(viiic) It has entered into this Agreement in connection Each Seller makes the representations and warranties set forth at Exhibit C with respect to the conduct Mortgage Loans as of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementrelated Purchase Date.
(bd) On The Sellers jointly and severally covenant with Buyer, from and after the Effective Datedate hereof, as follows:
(i) Each Party covenants The Sellers shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Upon request, each Seller shall deliver to Buyer a current Loan Schedule with respect to all Mortgage Loans subject to this Agreement with such frequency as Buyer may require but in no event less frequently than monthly;
(iii) No more than twenty-five (25%) percent by aggregate outstanding principal balance of the Mortgage Loans shall be subject to this Agreement for more than one hundred eighty (180) days in aggregate, and in no event shall the Mortgage Loans be subject to this agreement for more than three hundred and sixty (360) days;
(iv) The aggregate outstanding principal amount of Mortgage Loans subject to the other Party that, it has Agreement at any time that are Wet Mortgage Loans shall not exceed $150,000,000;
(v) The aggregate maximum Purchase Price for all Transactions (which are Committed Transactions) shall not exceed $500,000,000;
(vi) The aggregate maximum Purchase Price for Mortgage Loans that are second lien Mortgage Loans shall not exceed the greater of (i) ten (10%) percent of the aggregate Purchase Price of the Mortgage Loans or (ii) $30,000,000;
(vii) Each Seller will timely acquire comply with all regulatory authorizations necessary for it applicable provisions of the Custodial Agreement;
(viii) With respect to legally perform its obligations under Wet Mortgage Loans subject to this Agreement, the Sellers shall deliver the Mortgage Files for at least eighty (80%) percent by aggregate principal balance of the Wet Mortgage Loans no later than ten (10) calendar days after the related Purchase Date;
(ix) The Sellers shall deliver the Mortgage Files for all remaining Wet Mortgage Loans not delivered pursuant to subparagraph (viii) above no later than fifteen (15) calendar days after the related Purchase Date;
(x) For each Mortgage Loan that is a Wet Mortgage Loan, a Seller has obtained an insured closing letter issued by a title insurance company effective not later than the closing date for such Mortgage Loan;
(xi) In the event that Buyer purchases a Mortgage Loan that is a Wet Mortgage Loan and the Wet Mortgage Loan is not originated by a Seller for any reason, such Seller shall return the funds constituting the Purchase Price for such Wet Mortgage Loan via wire transfer within twenty four (24) hours of such Seller’s failure to complete the Wet Mortgage Loan;
(xii) Notwithstanding any provision of this Agreement or the Custodial Agreement to the contrary, any funds distributed for the funding of a Mortgage Loan through the Disbursement Account, shall constitute the Purchase Price for such Mortgage Loan; and
(iixiii) If Section 1.02(a) provides The Sellers shall not directly or indirectly use any of the proceeds from the sale of Purchased Mortgage Loans for the purpose of financing the activities of any person or entity that is subject to sanctions under any program administered by the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that Office of Foreign Assets Control of the Generating Facility qualifies as an Existing Qualifying FacilityUnited States Department of the Treasury.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Aames Financial Corp/De), Master Repurchase Agreement (Aames Investment Corp)
Representations, Warranties and Covenants. (a) On 3.1 As agent for each Underlying Customer and on its own behalf, the Effective DateClient represent and warrant to BCS as of the date of the Terms of this Section come into effect and as of the date of each Transaction, each Party represents and warrants to the other Party that:
(ia) It is duly organizedthe Client and its Underlying Customer each have all necessary authority, validly existing powers, consents, licenses and authorizations and have taken all necessary action to enable the Client lawfully enter into and perform the Terms of this Section, the Terms of Business and each Transaction and to grant the security interests and powers referred to in good standing under the laws Terms of this Section and the jurisdiction Terms of its formationBusiness;
(iib) The execution, delivery and performance the person(s) entering into the Terms of this Agreement are within its powers, Section and each Transaction under it have been duly authorized by all necessary action to do so;
(c) the Terms of this Section, the Terms of Business and each Transaction and the obligations created under each of them are binding upon, and are enforceable against, the Client and its Underlying Customer in accordance with their terms and do not and will not violate any of the terms and conditions in of any regulation, order, charge or agreement by which the Client or its governing documents, any contracts to which it Underlying Customer is a party or any Applicable Lawsbound;
(iiid) This Agreement constitutes the Client and its Underlying Customer (individually and collectively) are permitted under its constitution and any applicable law or regulation and are financially able to sustain any loss which may result from Transactions, and that entering into Transactions is a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defensessuitable investment vehicle for the Underlying Customer;
(ive) There is not pendingthe relevant Underlying Customer owns, with full title guarantee, all investments, collateral deposited with, transferred to BCS or to its knowledgecharged in BCS favor, threatened against it orby the Client acting as agent for the Underlying Customer and such investments, in collateral are free from any prior mortgage, charge, lien or other encumbrance whatsoever and neither the case of SellerClient acting as agent for the relevant Underlying Customer, nor the Underlying Customer itself, will further pledge or charge such investments, collateral or grant any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and lien over them while it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements pledged or information of any kind whatsoever that are not contained in this Agreement in deciding charged to enter into this AgreementBCS except with BCS prior written consent; and
(viiif) It any information which the Client provides or has entered into this Agreement provided to BCS in connection respect of the Client or its Underlying Customer is accurate and not misleading in any material respect.
3.2 The Client, as agent for each Underlying Customer and on its own behalf, covenants to BCS that the Client will:
(a) ensure at all times that the Client and its Underlying Customer obtain and comply with the conduct terms of its business and it has the capacity or ability do all that is necessary to provide or receive the Power Product as contemplated by this Agreement.maintain in full force and effect all authority, powers, consents, licenses and authorizations referred to above;
(b) On execute as agent for an Underlying Customer where the Effective Date:Client is duly authorized to do so;
(ic) Each Party covenants immediately notify BCS if the Client ceases to act for any Underlying Customer or if the other Party thatbasis upon which the Client acts on behalf of an Underlying Customer alters to an extent which would affect the Terms of Business or any Transaction made thereunder; and immediately notify BCS in writing if at any time any of the warranties, it has representations or will timely acquire all regulatory authorizations necessary for it undertakings in this Section are or become or are found to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitybe incorrect or misleading in any respect.
Appears in 2 contracts
Samples: Terms of Business, Terms of Business for Professional Clients and Eligible Counterparties
Representations, Warranties and Covenants. 1.1 The Builder acknowledges that the Buyer has entered into this Contract in full reliance on the representations set out in Clauses 1.2 and 1.3 and the Builder warrants that the statements contained in those Clauses are in all respects true and accurate.
1.2 Each party (ain either case, the "warrantor") On the Effective Date, each Party represents and warrants to the other Party party that:
(i) It is duly organizedall acts, validly existing conditions and things required to be done, fulfilled and performed in good standing order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the laws of obligations expressed to be assumed by it in this Contract and (b) to ensure that the jurisdiction of its formation;
(ii) The executionobligations expressed to be assumed by it in this Contract are legal, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its termshave been done, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred fulfilled and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementperformed; and
(ii) If Section 1.02(ano legal proceedings have been started or (to the best of the warrantor's knowledge and belief) provides that threatened which might have a material adverse effect on the Generating Facility is an Existing Qualifying Facility, then, Seller warrantor's ability to perform its obligations under this Contract.
1.3 The Builder further represents and warrants to Buyer the Buyer:
(i) that neither the Generating Facility qualifies as an Existing Qualifying Facilityexecution of this Contract nor the exercise by the Builder of its rights and performance of its obligations under this Contract will result in any breach of any German or European Community law, regulation, rule, directive or treaty;
(ii) neither the Builder nor (to the best of the Builder's knowledge, information or belief) any other person has (whether directly or indirectly) offered or paid or agreed to pay or give commission of any kind whatsoever in relation to or in connection with this Contract or any of the business transactions described in or contemplated by this Contract; and
(iii) that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of Germany and the European Community to enable it lawfully to enter into and perform its obligations under this Contract.
Appears in 2 contracts
Samples: Shipbuilding Contract (Norwegian Cruise Line Holdings Ltd.), Shipbuilding Contract (Norwegian Cruise Line Holdings Ltd.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It it is duly organizeda “qualified institutional buyer” as defined in Rule 144A under the Securities Act or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act; and
(ii) it is an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, validly existing as amended (the “CEA”), and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Dealer as of the date hereof (and, solely with respect to the representation and warranty set forth in Section 4(b)(i) below, as of any date that Counterparty notifies Dealer that a Settlement Method (including, for the avoidance of doubt, the Alternative Settlement) other than the Default Settlement Method applies or elects cash settlement of a Counterparty Payment Event under clause (o) under “Collateral” above or causes an Additional Termination Event under Section 5(n)(ii) below) that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares, and “material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer;
(ii) it agrees that it will satisfy all applicable filing, reporting or other requirements, including Sections 13(d) and 13(g) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to the Shares and this Transaction and it will promptly notify Dealer after any such report filed under Sections 13(d) and 13(g) of the Exchange Act becomes publicly available;
(iii) it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iv) it is entering into this Confirmation and the Transaction in good standing faith, not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(v) [Reserved]
(vi) [Reserved]
(vii) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act); and
(viii) Counterparty is exclusively a tax resident of the Netherlands.
(c) In connection with this Confirmation and the Transaction, Counterparty agrees that:
(i) it shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
(ii) it shall, upon the occurrence of any Event of Default or any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default in respect of which it is the Defaulting Party, notify Dealer reasonably promptly of the occurrence of such event; provided, however, that should Counterparty be in possession of material non-public information regarding the Issuer or the Shares, Counterparty shall only communicate such information to Dealer in connection with this Transaction as follows: By email to: xxxxxx.xxxxx@xxxx.xxx xxxxxx.xxxxxx@xxxx.xxx xxx.xxxxx@xxxx.xxx Attention: Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxx Xxxxx
(iii) if Cash Settlement applies to any Component pursuant to the provisions under the heading “Settlement Terms,” in Section 2 above, it shall not engage in any “distribution” (as defined in Regulation M) on the Valuation Date for such Component or the first Scheduled Trading Day thereafter, unless the Shares are “actively traded” (as defined in Rule 101(c)(1) of Regulation M) at such time.
(d) Counterparty represents and warrants to, and covenants with, Dealer as of the date hereof, any Settlement Method Election Date on which Counterparty elects or is deemed to elect Cash Settlement and any date on which Counterparty makes payment to Dealer in connection with any settlement hereunder, that it is or will be, as the case may be, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the business in which it engages.
(e) Each of Dealer and Counterparty agrees that notwithstanding anything provided herein or the Agreement, and notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to disclose to any and all persons, beginning immediately upon commencement of their discussions and without limitation of any kind, the tax treatment and tax structure of the Transaction, and all materials of any kind (including opinions or other tax analyses) that are provided by either party to the other relating to such tax treatment and tax structure.
(f) Counterparty represents, warrants and agrees that (i) Counterparty is subject to civil and commercial laws with respect to its obligations hereunder, (ii) the execution, delivery and performance by it of this Confirmation constitute and will constitute private and commercial acts and not public or governmental acts, and (iii) neither Counterparty nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which Counterparty is organized and existing in respect of its formation;obligations hereunder.
(iig) The executionCounterparty represents, delivery warrants and performance of this Agreement are within agrees that (i) it has implemented and maintains, and will continue to maintain, in effect policies and procedures designed to ensure compliance by it and its powersmanagers, have been duly authorized by all necessary action officers, employees and do not violate any of the terms agents with Anti-Corruption Laws and conditions in applicable Sanctions, and Counterparty and its governing documentsmanagers, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid officers and binding obligation enforceable against it in accordance with its termsemployees and, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it orits agents, are in the case compliance with Anti-Corruption Laws and applicable Sanctions in all material respects, (ii) none of Seller, (a) Counterparty or any of its Related Entitiesmanagers, officers or employees, or (b) to the knowledge of Counterparty, any legal proceeding agent of Counterparty that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not act in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement capacity in connection with or benefit from the conduct Transaction, is a Sanctioned Person, (iii) to the knowledge of its business Counterparty, the Transaction (including the use of proceeds of the Advance Amount) will not violate Anti-Corruption Laws or applicable Sanctions and it has (iv) Counterparty shall not use the capacity proceeds of the Advance Amount (a) in furtherance of an offer, payment, promise to pay, or ability authorization of the payment or giving of money, or anything else of value, to provide any person or receive the Power Product as contemplated by this Agreement.
entity in violation of any Anti-Corruption Laws, (b) On for the Effective Date:
purpose of funding, financing or facilitating any activities, business or transaction of or with a Sanctioned Person, or in any Sanctioned Country, or (ic) Each Party covenants in any manner that would result in the violation of any Sanctions applicable to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityany party hereto.
Appears in 2 contracts
Samples: Confirmation (Waha Capital PJSC), Funded Collar Transaction (Waha Capital PJSC)
Representations, Warranties and Covenants.
(a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. Issuer represents and warrants and covenants that immediately before and after giving effect to this Amendment:
(a) On the Effective Date, each Party represents and warrants Except as disclosed in writing to the Servicer and Disbursing Agent prior to the execution of this Amendment and other Party that:
than the representation set forth in Section 5.9 of the Disbursing Agreement, (i) It is duly organized, validly existing each of the representations and warranties contained in the Disbursing Agreement and in good standing any other document furnished in connection therewith is true and correct in all material respects (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct in all respects) on the date hereof (provided, that those representations and warranties expressly referring to a specific date are true and correct in all material respects (or in all respects, if such representation and warranty is qualified as to “materiality”, “Material Adverse Effect” or similar language) as of such date); and (ii) no Event of Default or “Event of Default” as defined under the laws of the jurisdiction of its formationIndenture has occurred and is continuing or would exist after giving effect to this Amendment;
(iib) The the execution, delivery and performance of this Agreement Amendment are within its the Co-Obligors’ corporate (or equivalent) powers, have has been duly authorized by all necessary corporate action and do not violate any of the terms Issuer, has been duly executed and conditions delivered by the Issuer, does not and will not conflict with nor constitute a breach of any provision contained in its governing any Co-Obligors’ constituent or organizational documents, does not and will not constitute an event of default under any contracts material agreement to which it any Co-Obligor is a party or any Applicable LawsCo-Obligor is bound and does not violate the terms of the Indenture;
(iiic) This Agreement constitutes a legally this Amendment is the legal, valid and binding obligation of the Co-Obligors, enforceable against it the Co-Obligors in accordance with its terms, subject to any Equitable Defenses;bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity; and
(ivd) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No no Event of Default with respect to it or payment default under Section 8.1 of the Disbursing Agreement or Section 6.01 of the Indenture has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementcontinuing.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Proceeds Disbursing and Security Agreement (Carbon Revolution Public LTD Co), Proceeds Disbursing and Security Agreement (Carbon Revolution Public LTD Co)
Representations, Warranties and Covenants. (a) On the Effective DateThe Company represents and warrants to Noteholder, each Party and Noteholder represents and warrants to the other Party thatCompany as follows:
(i) It if an entity, it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The executionorganization and has all requisite corporate, delivery partnership or other power and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts authority to enter into each Transaction Document to which it is a party and to carry out the transactions contemplated by, and perform its respective obligations under, each Transaction Document to which it is a party;
(ii) the execution, delivery and performance by it of each Transaction Document to which it is a party does not and shall not (A) violate any provision of law, order, rule or regulation applicable to it or any Applicable Lawsof its affiliates or its certificate of incorporation or bylaws or other organizational documents or those of any of its subsidiaries or (B) conflict with, result in the breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligations to which it or any of its affiliates is a party or under its certificate of incorporation, bylaws or other governing instruments;
(iii) This Agreement constitutes the execution, delivery and performance by it of each Transaction Document to which it is a party does not and shall not require any registration or filing with, the consent or approval of, notice to, or any other action with respect to, any Federal, state or other governmental authority or regulatory body, except for (A) such consents, approvals, authorizations, registrations or qualifications as may be required under the state securities or Blue Sky laws in connection with the issuance of the Exchange Shares, (B) the filing with the Commission of a Tender Offer Statement on Schedule TO with respect to the Exchange Offer, including the exhibits thereto, and (C) such other filings as may be necessary or required by the Commission;
(iv) each Transaction Document to which it is a party has been duly authorized, executed and delivered and, assuming the due execution and delivery of such Transaction Document by each of the other parties thereto, each such Transaction Document is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, subject except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally; and
(v) it has been represented by counsel in connection with the Transaction Documents and the transactions contemplated by the Transaction Documents.
(b) Noteholder further represents and warrants to the Company that:
(i) as of the date of this Agreement, Noteholder (together with its Affiliates) is the Beneficial Owner of $46.2 million aggregate principal amount of Existing Notes, which represents all of the Existing Notes held by Noteholder and its Affiliates, with the requisite power and authority to vote and dispose of such Existing Notes, and such Existing Notes are owned free and clear of any liens, encumbrances, equities or claims, other than (x) those under securities laws or any ordinary course claims, and (y) pledges in connection with bona fide margin accounts or other loan or financing agreements secured by such Existing Notes;
(ii) as of the date of this Agreement and through the date of acquisition of its Existing Notes pursuant to the Exchange Offer, Noteholder has full legal power, authority and right to exchange its Existing Notes then held of record or Beneficially Owned by it without the consent, approval of, or any other action on the part of, any other person or entity; and (other than this Agreement) Noteholder has not entered into any voting agreement with any person or entity with respect to any Equitable Defensesof its Existing Notes, granted to any person or entity any of its Existing Notes, deposited any of its Existing Notes in a voting trust or entered into any arrangement or agreement with any person or entity limiting or affecting its legal power, authority or right to vote such Existing Notes on any matter; and
(iii) Noteholder has reviewed the Company’s reports filed with the Commission, including its report on Form 8-K filed with the Commission on April 30, 2009, and has reviewed, or has had the opportunity to review, with the assistance of professional and legal advisors of its choosing, sufficient information necessary for Noteholder to decide to exchange its Existing Notes pursuant to the Exchange Offer. Noteholder acknowledges that the Company may be in possession of material, nonpublic information regarding the Company, its financial condition, results of operations, businesses, properties, assets, liabilities, management, projections, appraisals, plans, prospects and other information relating to the Company, including potential proposals for recapitalizations, reorganizations, mergers, acquisitions, liquidation or other offers respecting securities of, for or by the Company (collectively, the “Information”), and that such information may be material to a decision to sell or purchase securities of the Company. Noteholder acknowledges and agrees that the Company has no obligation to disclose any Information to Noteholder. Noteholder has determined to enter into this Agreement based on such investigation, notwithstanding its lack of knowledge of the Information, and not in reliance on any representation or investigation made by, or Information known by, the Company.
(c) The Company further represents, warrants, covenants and agrees to and with Noteholder as follows:
(i) as of the date of this Agreement, the Company had 87,809,651 shares of Common Stock outstanding and no shares of preferred stock outstanding (except as may be increased as a result of (A) exercises of outstanding options, warrants and other rights after the date set forth in the Company’s Annual Report on Form 10-K filed with the Commission on March 13, 2009 (the “Annual Report”); and (B) grants of options, warrants and other rights after the date set forth in the Annual Report);
(ii) that the Shares are duly authorized and, upon issuance will be duly and validly issued and free from all taxes, liens and charges with respect to the issue thereof and the Shares shall be fully paid and nonassessable;
(iii) that the Company will reserve from its duly authorized capital stock the maximum number of Shares issuable in the Exchange Offer and upon conversion of the New Notes;
(iv) There is not pending, or to its knowledge, threatened against it or, the Company shall comply with all applicable law in connection with the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementExchange Offer;
(v) No Event the Company shall cause all shares of Default with respect Common Stock issued in the Exchange Offer to it has occurred and be listed on each securities exchange or other securities market, if any, on which the Common Stock is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreementthen listed;
(vi) It is acting for its own account, all New Notes and its decision to enter into this Agreement is based upon its own judgment, not in reliance Shares will be freely tradable immediately upon the advice or recommendations consummation of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;Exchange Offer; and
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection the Annual Report and all reports filed with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants Commission subsequent to the other Party that, it has or will timely acquire date of filing the Annual Report and prior to the date hereof complied with the requirements of the Exchange Act in all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that material respects as of the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitydate of such filing.
Appears in 2 contracts
Samples: Settlement and Exchange Support Agreement (Tang Capital Partners Lp), Settlement and Exchange Support Agreement (Cell Genesys Inc)
Representations, Warranties and Covenants. (a) On the Effective DateThe Purchaser represents, each Party represents warrants and warrants covenants to the other Party thatBroker as follows:
(i) It The Purchaser is duly organizednot, validly existing and in good standing under the laws as of the jurisdiction date hereof, aware of its formation;or in possession of Material Nonpublic Information.
(ii) During the term of this Agreement, the Purchaser will not engage, and will not cause others to engage on behalf of the Purchaser, in any transactions (other than (x) purchases of Shares pursuant to this Agreement, or (y) exercises of stock options issued pursuant to the Company's stock option plans; provided that the Purchaser complies with Rule 16b-3 under the 1934 Act in connection with any such exercise and the related securities) involving any security into which the Common Stock is convertible or any other related security or derivative, including, without limitation, corresponding or hedging transactions with respect to the Common Stock. The executionPurchaser also agrees not to enter into any binding contract with respect to any transactions described in the preceding sentence.
(iii) The Purchaser will at all times, delivery in connection with the performance of this Agreement, comply with all applicable laws, including, without limitation, Section 16 of the 1934 Act and the rules and regulations promulgated thereunder.
(iv) The Purchaser agrees to provide such additional information and to execute such additional documents or instruments as may be reasonably requested by the Company or the Broker in connection with the performance of this Agreement and to confirm compliance with applicable law.
(v) The Company has approved the form of this Agreement.
(vi) This Agreement constitutes the legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting the enforceability of creditors' rights and general principles of equity, and as rights to indemnity hereunder may be limited by applicable law. The Shares are within its powersnot subject to any liens, have been duly authorized by all necessary action security interests or other impediments to transfer, nor is there any litigation, arbitration or other proceeding pending, or to the Purchaser's knowledge threatened, that would prevent or interfere with the purchase of the Shares under this Agreement.
(b) The Broker represents, warrants and do covenants to the Purchaser as follows:
(i) The Broker has implemented reasonable policies and procedures, taking into consideration the nature of the Broker's business, to ensure that individuals making investment decisions will not violate the laws prohibiting trading on the basis of Material Nonpublic Information. These policies and procedures include those that restrict any purchase or sale, or causing any purchase or sale, of any security as to which the Broker has Material Nonpublic Information, as well as those that prevent such individuals from becoming aware of or in possession of such Material Nonpublic Information.
(ii) In connection with all purchases of Shares, the Broker shall deliver to the Purchaser by facsimile or electronic mail, no later than the close of business on the date such transaction is effected, all information necessary (to the extent that the Broker possesses such information) for the Purchaser to make all required Form 4 and 5 filings, as required by Section 16(a) of the terms and conditions in its governing documents, any contracts 1934 Act with regard to which it is a party or any Applicable Laws;purchases made pursuant to this Agreement.
(iii) This Agreement constitutes a legally the legal, valid and binding obligation of the Broker enforceable against it the Broker in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pendingexcept as the enforceability thereof may be limited by applicable bankruptcy, or to its knowledgeinsolvency, threatened against it orreorganization, in fraudulent conveyance, moratorium and other laws affecting the case enforceability of Seller, any creditors' rights and general principles of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own accountequity, and its decision as rights to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated indemnity hereunder may be limited by this Agreementapplicable law.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Purchase Trading Plan Agreement (Steel Partners Ii Lp), Purchase Trading Plan Agreement (Steel Partners Ii Lp)
Representations, Warranties and Covenants. (a) On of the Effective DateDistributor ------------------------------------------------------------ The Distributor represents, each Party represents warrants and warrants to agrees with the other Party Company, for its benefit that:
(ia) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have by the Distributor has been duly authorized by all necessary action action, and do not violate upon execution and delivery hereof, this Agreement will be a valid, binding and enforceable obligation of the Distributor;
(b) the Distributor will offer the Units for sale and will solicit offers to buy the Units only in compliance with the procedures described in the Offering Memorandum and this Agreement and in accordance with applicable law;
(c) as of the date hereof, no permit, consent, approval or authorization of, or declaration to, or filing with, any governmental or regulatory authority is required in connection with the (i) execution, delivery and performance of this Agreement and (ii) consummation of any of the terms transactions contemplated herein and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawsthe Offering Memorandum;
(iiid) This Agreement constitutes a legally valid and binding obligation enforceable against it without the prior consent of the Company, no steps will be taken to qualify the Units for sale in accordance with its terms, subject to any Equitable Defensesjurisdiction;
(ive) There neither the Distributor, nor any affiliate of the Distributor, shall offer the Units in any jurisdiction, except in compliance with the applicable law in any such jurisdiction in which such offering is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementmade;
(vf) No Event the Distributor will notify the Company promptly of Default with respect to any occurrence of which it has occurred and becomes aware which is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not material in reliance upon the advice or recommendations context of the other Party offering and it is capable sale of assessing the merits Units, including any event which shall lead the Distributor to reasonably believe that the Offering Memorandum will be misleading, or which affects any of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not warranties, agreements and indemnities by the Distributor contained in this Agreement in deciding (or which would have affected any of the same if this Agreement had been entered into immediately thereafter), and will take such steps as may be reasonably requested by the Company to enter into this Agreementremedy and/or publicize the same; and
(viiia) It the Distributor has entered into this Agreement in connection used commercially reasonable due diligence with respect to accepting as clients any investors who have purchased through it and with respect to introducing investors to the conduct Company, and to the best of its the Distributor's knowledge, such clients are of good business reputation and it has such clients' funds used to purchase Units were not derived from, nor the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.product of, any criminal activity; and
(b) On the Effective Date:
(i) Each Party covenants Distributor is, and agrees that it will be at all times with respect to this Agreement, appropriately licensed in the country of its domicile, or otherwise exempt from such requirements, to the other Party thatextent required by applicable law, it has or in each jurisdiction in which the Distributor will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under the duties set forth in this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Distribution Agreement (Goldman Sachs Hedge Fund Partners LLC), Distribution Agreement (Goldman Sachs Hedge Fund Partners Ii LLC)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 6.1 The GIC Provider hereby represents and warrants to, and covenants with, each of the Cash Manager, the Guarantor and the Bond Trustee at the date hereof, on each date on which an amount is credited to the other Party GIC Account and on each Guarantor Payment Date, that:
(ia) It it is duly organized, validly existing and in good standing a financial services cooperative constituted under the laws of Quebec and duly qualified to do business in every jurisdiction where the jurisdiction nature of its formationbusiness requires it to be so qualified, except where the failure to qualify would not constitute a Material Adverse Event;
(iib) The the execution, delivery and performance by the GIC Provider of this Agreement (i) are within its the GIC Provider’s corporate powers, (ii) have been duly authorized by all necessary action corporate action, and (iii) do not violate any contravene or result in a default under or conflict with (1) the constating documents of the terms GIC Provider, (2) any law, rule or regulation applicable to the GIC Provider, or (3) any order, writ, judgment, award, injunction, decree or contractual obligation binding on or affecting the GIC Provider or its property;
(c) it is not a non-resident of Canada within the meaning of the Income Tax Act (Canada);
(d) it possesses the necessary experience, qualifications, facilities and conditions in other resources to perform its governing documents, any contracts responsibilities under this Agreement and the other Transaction Documents to which it is a party or any Applicable Lawsand it will devote all due skill, care and diligence to the performance of its obligations and the exercise of its discretions hereunder;
(iiie) This Agreement constitutes it will comply with the provisions of, and perform its obligations under, this Agreement, the other Transaction Documents to which it is a legally valid party and binding obligation enforceable against it the CMHC Guide, in accordance with its terms, subject to each case in any Equitable Defensescapacity;
(ivf) There it is not pending, or and will continue to its knowledge, threatened against it or, be in good standing with the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementAMF;
(vg) No Event of Default it is and will continue to be in material compliance with respect its internal policies and procedures relevant to the services to be provided by it has occurred pursuant to this Agreement and the other Transaction Documents to which it is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreementparty;
(vih) It it is acting for its own accountand will continue to be in material compliance with all laws, regulations and its decision rules applicable to enter into it in relation to the services provided by it pursuant to this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of and the other Party and Transaction Documents to which it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementa party; and
(viiii) It has entered into the unsecured, unsubordinated and unguaranteed debt obligations of the GIC Provider rated by each of the Rating Agencies are at or above the Account Depository Institution Threshold Ratings.
6.2 The GIC Provider undertakes to notify the Guarantor and the Bond Trustee immediately if, at any time during the term of this Agreement Agreement, any of the statements contained in connection with Section 6.1 ceases to be true. The representations, warranties and covenants set out in Section 6.1 shall survive the conduct signing and delivery of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Guaranteed Investment Contract, Guaranteed Investment Contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) : It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) ; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) ; This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) ; There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) ; No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) ; It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) ; It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) . On the Effective Date:
(i) : Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying CHP Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as a Qualifying Cogeneration Facility and otherwise meets the requirements of a CHP Facility; and If the Generating Facility is an Existing Qualifying CHP Facility, Seller represents and warrants to Buyer that the Power Rating of the Generating Facility equals the value set forth in Section 1.09.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 2.12.1 Each Investor hereby represents and warrants to the other Party Investors and to the Gift Trusts that:
(ia) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts Investor Commitment Letter to which it is a party has been duly and validly authorized and approved by all necessary organizational, corporate, limited liability company, partnership, trust or any Applicable Lawsother similar action, and no other proceedings or actions on the part of such Investor are or will be necessary therefor;
(iiib) This this Agreement constitutes and the Investor Commitment Letter to which it is a legally party have been duly and validly executed and delivered by such Investor and constitute (and will continue to constitute) a legal, valid and binding agreement of such Investor enforceable, in the case of this Agreement, by each other party hereto, or, in the case of the Investor Commitment Letter to which it is a party, by Parent, against such Investor in accordance with their respective terms (including the terms hereof regarding such enforcement), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar applicable laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity;
(c) the execution, delivery and performance by such Investor of this Agreement and the Investor Commitment Letter to which it is a party do not and will not (i) violate its organizational, corporate, limited liability company, partnership, trust or other similar documents, (ii) violate any applicable law or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation enforceable against it or to the loss of any benefit under, any material contract to which such Investor is a party;
(d) such Investor has not entered, and will not enter, into any agreement, arrangement or understanding with any other potential investor or acquiror or group of potential investors or acquirors of the Company or any of its Subsidiaries, or with the Company, that relates to this Agreement or any of the Transaction Agreements, other than (i) this Agreement and the agreements expressly contemplated by this Agreement (including the Stockholders Agreement and the Voting Agreement and the Agreements described on Schedule B thereto) and all the Exhibits, Schedules and Annexes to any of the foregoing, (ii) as may be related to the Sell-Down, and/or (iii) any debt financing agreements and arrangements between Affiliates of the Investors; provided, that this Section 2.12.1(d) shall not limit or restrict (x) MD in acting in his capacity as an officer and a director of the Company and exercising his fiduciary duties and responsibilities in his capacity as such, or (y) MD or any other MD Investor or MSDC Investor, prior to the Stockholder Approval, from holding discussions or negotiations, or entering into any agreement, arrangement or understanding, in each case, in connection with an Acquisition Proposal; provided, that in the case of this clause (y), (A) the Company is permitted pursuant to Section 5.3(a) or 5.3(c) of the Merger Agreement to engage in discussions with such Persons or groups of Persons regarding an Acquisition Proposal and (B) any such agreement, arrangement or understanding does not prevent MD or the other MD Investors or MSDC Investor from fulfilling their obligations under Section 2.1 and the other provisions of this Agreement, the MD Investors Commitment Letter and/or the MSDC Investor Commitment Letter (unless, in the case of obligations that terminate upon the termination of the Merger Agreement in accordance with its terms, subject the Merger Agreement is so terminated); and
(e) none of the information supplied in writing by or on behalf of such Investor specifically for inclusion or incorporation by reference in the Schedule 13E-3, Proxy Statement or any other filings contemplated by the Merger Agreement will cause a breach of the representations and warranties of Parent, Intermediate or Merger Sub set forth in the Section 4.5 of the Merger Agreement.
2.12.2 Each Gift Trust hereby represents and warrants to any Equitable Defensesthe Investors that:
(a) such Gift Trust has been duly created and is validly existing and being administered under the laws of the State of Texas, and that the Trustee signing this Agreement on behalf of such Gift Trust is the current Trustee of such Gift Trust and, under the terms and conditions of the documents governing such Gift Trusts, has full authority to act on behalf of and to bind such Gift Trust;
(ivb) There is the execution, delivery and performance of this Agreement has been duly and validly authorized and no other proceedings or actions on the part of such Gift Trust are or will be necessary therefor;
(c) this Agreement has been duly and validly executed and delivered by such Gift Trust and, with respect to the sections of this Agreement expressly applicable thereto only, constitutes (and will continue to constitute) a legal, valid and binding agreement of such Gift Trust enforceable by each other party hereto against such Gift Trust in accordance with its terms (including the terms hereof regarding such enforcement), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar applicable laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity;
(d) the execution, delivery and performance by such Gift Trust of this Agreement does not pendingand will not (i) violate the terms of the documents governing such Gift Trust, (ii) violate any applicable law or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to the loss of any benefit under, any material contract to which such Gift Trust is a party;
(e) as of the date hereof, (i) the Gift Trusts have good and valid title, free and clear of any Liens, to 2,964,869 shares of Company Common Stock (the “Gift Trust Shares”) and (ii) other than the Gift Trust Shares, neither Gift Trust, nor any other entity directly or indirectly controlled by such Gift Trust, owns beneficially or of record any shares of Company capital stock (or any securities convertible into, or exchangeable or exercisable for, any shares of Company capital stock or any right to receive shares of Company capital stock with or without the passage of time and/or the satisfaction of any vesting or other conditions) or any interest therein.
2.12.3 Each of SLP III and SLP IV hereby represents and warrants to the other Investors that it has, or has access to, and at Closing will have, unfunded capital commitments in an amount not less than the Equity Investor Commitment and no internal or other approval is required for SLP III and SLP IV, respectively, to fulfill each of its knowledgeobligations under the Equity Investors Commitment Letter.
2.12.4 MD hereby represents and warrants to the other Investors that he has, threatened against it oror has access to, and at Closing will have, sufficient funds in an amount not less than his Cash Commitment (as defined in the case MD Investors Commitment Letter). MSDC Investor hereby represents and warrants to the other Investors that together with its affiliated investment funds it has, or has access to, and at Closing will have, unfunded capital commitments or otherwise have sufficient funds in an amount not less than the MSDC Cash Commitment and no internal or other approval is required for MSDC Investor to fulfill its obligations under the MSDC Investor Commitment Letter applicable to it.
2.12.5 Each MD Investor hereby represents and warrants to the other Investors that:
(a) as of Sellerthe date hereof, (i) the MD Investors have good and valid title, free and clear of any Liens (other than any of its Related Entities, any legal proceeding Lien that could materially adversely affect its would not prevent or delay the MD Investors’ ability to perform under this Agreementtheir obligations hereunder), to 270,334,514 shares of Company Common Stock and (ii) other than the shares of Company Common Stock described in the foregoing clause (i) and the Gift Trust Shares and other than Company Stock Options, Company RSU Awards and no more than 120,000 shares of Company Common Stock in the aggregate for all MD Investors held in a 401(k) benefit plan of the Company, none of such MD Investor, any other entity directly or indirectly controlled by such MD Investor, or any estate planning trust, partnership or entity of such MD Investor (other than another MD Investor), owns beneficially or of record any shares of Company capital stock (or any securities convertible into, or exchangeable or exercisable for, any shares of Company capital stock or any right to receive shares of Company capital stock with or without the passage of time and/or the satisfaction of any vesting or other conditions) or any interest therein;
(vb) No Event as of Default the Closing, the MD Investors will have good and valid title, free and clear of any Liens (other than any of Lien that would not prevent or delay such MD Investor’s ability to perform its obligations hereunder), to 273,299,383 shares of Company Common Stock (the “Rollover Shares”),
(c) other than the Voting Agreement, (i) such MD Investor has not entered into, and shall not enter into, any voting agreement or voting trust with respect to it any Rollover Shares that is inconsistent with such MD Investor’s obligations pursuant to this Agreement and/or the MD Investors Commitment Letter, and (ii) such MD Investor has occurred not granted, and shall not grant, a proxy or power of attorney with respect to any Rollover Shares that is continuing inconsistent with such MD Investor’s obligations pursuant to this Agreement and/or the MD Investors Commitment Letter.
2.12.6 Each Investor and no Gift Trust agrees to notify Parent and the other Investors and Gift Trusts promptly in writing of the number of any shares of Company Common Stock, any other voting securities, any options, warrants, restricted stock units or other rights to purchase shares of Company Common Stock or other voting securities of the Company and any other securities convertible into or exercisable or exchangeable for shares of Company Common Stock or other voting securities of the Company acquired by such event or circumstance will occur Investor, if any, after the date hereof (including, without limitation, by purchase, as a result of its entering into a stock dividend or performing its obligations under this Agreement;
(vi) It is acting for its own accountdistribution, and its decision to enter into this Agreement is based stock split, recapitalization, combination, reclassification, exchange or change of such shares or the like, or upon its own judgment, not in reliance upon the advice exercise or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information conversion of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementsecurities).
(b) On the Effective Date:
(i) 2.12.7 Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller Investor hereby represents and warrants to Buyer the other Investors that, other than the Equity Investors Commitment Letter, MD Investors Commitment Letter, the MSDC Investor Commitment Letter, the Voting Agreement and the agreements listed on Section 4.8 of the Parent Disclosure Letter, there are no contracts, undertakings, commitments, agreements, obligations, arrangements or understandings, whether written or oral, between such Investor or any of its Affiliates, on the one hand, and any beneficial owner of outstanding Shares or any member of the Company’s management or the Company Board, on the other hand, (i) relating in any way to such Shares, the transactions contemplated by the Merger Agreement, or to the ownership or operations of the Company after the Effective Time, or (ii) prohibiting the parties to the Voting Agreement from taking the actions described therein.
2.12.8 Each Investor that is an Affiliate of a Parent Party represents and warrants to the Generating Facility qualifies other Investors that, except as set forth in Section 4.9 of the Parent Disclosure Letter, none of such Investor or any of its Affiliates that is an Existing Qualifying FacilityAffiliate of a Parent Party beneficially owns, directly or indirectly (including pursuant to a derivatives contract), any shares of Company Common Stock or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock or any securities of any Subsidiary of the Company and none of such Investor or any of its Affiliates that is an Affiliate of a Parent Party has any rights to acquire, directly or indirectly, any shares of Company Common Stock except pursuant to the Merger Agreement, the MD Investors Commitment Letter, agreements to which the Company is a party and as set forth in Section 4.9 of the Parent Disclosure Letter.
Appears in 2 contracts
Samples: Interim Investors Agreement, Interim Investors Agreement (Dell Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each 2.1 Each Party represents and warrants to the other Party Parties hereto that:
(ia) It it is a company duly organizedincorporated, organized and validly existing subsisting under the laws of its incorporating jurisdiction;
(b) it has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) neither the execution and delivery of this Agreement nor any of the agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated conflict with, result in the breach of or accelerate the performance required by, any agreement to which it is a Party; and
(d) the execution and delivery of this Agreement and the agreements contemplated hereby will not violate or result in the breach of the laws of any jurisdiction applicable or pertaining thereto or of its constating documents.
2.2 The Optionor represents and warrants to the Optionee that:
(a) unless otherwise provided herein, the Optionor, or an agent of the Optionor, is the legal and beneficial holder of a 100% undivided interest in the Property;
(b) the Property is free and clear of all liens and encumbrances, and is in good standing under the mining laws of the jurisdiction State of its formationWyoming and the United States of America;
(iic) The executionto the best of the knowledge of the Optionor, delivery and performance all of this Agreement are within its powers, the mineral claims comprising the Property have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it located in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case mining laws of Seller, any the State of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event Wyoming and the United States of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own accountAmerica, and its decision to enter into this Agreement is based upon its own judgmentin accordance with local customs, not in reliance upon the advice or recommendations of the other Party rules and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementregulations; and
(viiid) It has entered there is no litigation, proceeding or investigation pending or threatened against the Optionor with respect to the Property, nor does the Optionor know, or have any grounds to know after due enquiry, of any basis for any litigation, proceeding or investigation which would affect the Property.
2.3 The representations, warranties and covenants hereinbefore set out are conditions on which the Parties have relied in entering into this Agreement and will survive the acquisition of any interest in the Property by the Optionee and each Party will indemnify and save the other harmless from all loss, damage, cause, actions and suits arising out of or in connection with the conduct any breach of its business any representation, warranty, covenant, agreement or condition made by them and it has the capacity or ability to provide or receive the Power Product as contemplated by contained in this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Option and Joint Venture Agreement (Strathmore Minerals Corp.), Option and Joint Venture Agreement (Strathmore Minerals Corp.)
Representations, Warranties and Covenants. (a) On the Effective DatePLF represents, each Party represents warrants and warrants covenants to the other Party Asta Parties that:
(i) It is duly organized, validly existing authorized and in good standing under the laws of the jurisdiction of empowered to enter into and perform its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform obligations under this Agreement;
(vii) No Event of Default with respect to It is under no contractual or other restriction which prohibits it has occurred and is continuing and no such event or circumstance will occur as a result of its from entering into or performing its obligations under this Agreement;.
(iii) No third Person has any option or right to be a member or otherwise participate in the business of the Company or the PLF Business.
(iv) To the knowledge of PLF, there are no liens, claims or judgments against the PLF Business or the Marks which would have a material adverse effect on the PLF Business or the Business.
(v) To the knowledge of PLF, the documentation, including the Purchase Agreement, which PLF utilizes in connection with the PLF Business (and will utilize in connection with the Business) complies and will comply in all material respects with applicable Laws, and all revenue received and to be received by PLF and the Company was and will be obtained in compliance with applicable Laws.
(vi) It PLF is acting for its own account, and its decision qualified to enter into this Agreement conduct business in the State of New York. PLF is based upon its own judgment, not qualified to do business as a foreign limited liability Company in reliance upon all states where its’ business requires foreign qualification. PLF will cause the advice or recommendations of the other Party and Company to promptly qualify as a foreign limited liability company in all states where it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;required by applicable Laws to do so.
(vii) It has not relied on any promisesThis Agreement constitutes the valid, representationslegal and binding obligation of PLF, statements or information of any kind whatsoever that are not contained enforceable in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection accordance with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementterms.
(b) On the Effective DateThe Asta Parties hereby jointly and severally represent, warrant and covenant to PLF that, with respect to each of them:
(i) Each Party covenants It is authorized and empowered to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally enter into and perform its obligations under this Agreement; andAgreement and the applicable Asta Documents to which it is a party;
(ii) If It is under no contractual or other restriction which prohibits it from entering into or performing its obligations under this Agreement and the applicable Asta Documents to which it is a party;
(iii) No regulatory or other consents are necessary for each of the Asta Parties to perform its obligations under this Agreement and the applicable Asta Documents to which it is a party;
(iv) There are no liens, claims or judgments against ASFI which would have a material adverse effect on Asta Parties’ ability to perform its obligations under this Agreement and the applicable Asta Documents to which it is a party;
(v) The Asta Documents constitute the valid, legal and binding obligation of the respective Asta Parties who are signatories thereto, each enforceable in accordance with its respective terms.
(c) The representations and warranties contained in this Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility1.9 shall be deemed Survival Obligations, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitydefined below.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement (Asta Funding Inc)
Representations, Warranties and Covenants. (a) On Employee understands as part of the Effective Dateconsideration for the offer of employment extended to Employee by Employer and of his employment or continued employment by Employer, each Party that Employee has not brought and will not bring with him to Employer or use in the performance of his responsibilities at Employer any materials or documents of a former employer that are not generally available to the public, unless Employee has obtained express written authorization from the former employer for their possession and use. Employee represents and warrants to Employer that the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery delivery, and performance of Employee of and under this Agreement are within its powers, have been duly authorized by all necessary action does not and do will not with the passage of time or the giving of notice or both violate any of the terms and conditions in its governing documents, of any contracts other written or oral agreement to which it Employee is a party or any Applicable Laws;
(iii) This Agreement constitutes by which Employee is bound. Employee represents and warrants that he is not a legally valid and binding obligation enforceable against it in accordance with its terms, subject party to any Equitable Defenses;
(iv) There is employment, non-competition, proprietary information or confidentiality agreement with any former employer that remains or may remain in effect as of the date hereof. Employee has not pendingentered into, or and Employee agrees not to its knowledge, threatened against it or, in the case of Sellerenter into, any of its Related Entities, oral or written agreement that is in any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default way inconsistent with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks terms of this Agreement;
. Employee also understands that, in his employment with Employer, Employee is not to breach any obligation of confidentiality that Employee has to former employers. Employee further represents and warrants that he has never been: (viii) It has convicted or indicted in a criminal proceeding and is not relied on any promises, representations, statements or information a named subject of a pending criminal proceeding (excluding minor traffic violations); (ii) the subject of any kind whatsoever that are investigation, order, judgment or decree, not contained subsequently reversed, suspended or vacated, of any court, permanently or temporarily enjoining him from, or otherwise limiting, Employee's engagement in this Agreement in deciding to enter into this Agreement; and
any (viiiA) It has entered into this Agreement activity in connection with the conduct purchase or sale of its any security or commodity or in connection with any violation of Federal or State securities laws or (B) type of business practice; or (iii) found, whether formally or informally, by a court in a civil action or by the Securities and it has the capacity Exchange Commission to have violated any Federal or ability to provide or receive the Power Product as contemplated by this AgreementState securities laws.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Employment Agreement (Sport Supply Group Inc), Employment Agreement (Sport Supply Group Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) : It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) ; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) ; This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) ; There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) ; No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) ; It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) ; It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) and It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) . On the Effective Date:
(i) : Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) and If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Representations, Warranties and Covenants. 1.1 Each party acknowledges that the other has entered into this Contract in full reliance on the representations set out in this Clause 1 and each party (ain either case, the “warrantor”) On the Effective Datewarrants that such representations are in all respects true, each Party accurate and not misleading in any respect.
1.2 The Warrantor represents and warrants to the other Party party that:
(i) It is duly organizedall acts, validly existing conditions and things required to be done, fulfilled and performed in good standing order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the laws of obligations expressed to be assumed by it in this Contract and (b) to ensure that the jurisdiction of its formation;
(ii) The executionobligations expressed to be assumed by it in this Contract are legal, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its termshave been done, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred fulfilled and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementperformed; and
(ii) If Section 1.02(ano legal proceedings have been started or (to the best of the warrantor’s knowledge and belief) provides that threatened which might have a material adverse effect on the Generating Facility is an Existing Qualifying Facility, then, Seller warrantor’s ability to perform its obligations under this Contract.
1.3 The Builder further represents and warrants to the Buyer:
(i) that neither the execution of this Contract nor the exercise by the Builder of its rights and performance of its obligations under this Contract will result in any breach of any French or European Union law, regulation, rule, directive or treaty;
(ii) that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of France and the European Union to enable it lawfully to enter into and perform its obligations under this Contract.
1.4 The Buyer further represents and warrants to the Builder:
(i) that neither the Generating Facility qualifies as an Existing Qualifying Facilityexecution of this Contract nor the exercise by the Buyer of its rights and performance of its obligations under this Contract will result in any breach of any law, regulation, rule, directive or treaty applicable to the Buyer or any of the protected parties; and
(ii) that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of Bermuda to enable it lawfully to enter into and perform its obligations under this Contract.
Appears in 2 contracts
Samples: Shipbuilding Contract (NCL CORP Ltd.), Shipbuilding Contract (NCL CORP Ltd.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 3.01 Each of LEXARIA and ENERTOPIA represents and warrants to the other Party thatas follows:
(ia) It is duly organized, validly existing incorporated and is in good standing as to the filing of annual returns under the laws of the jurisdiction of its formation;incorporation.
(iib) It has the corporate or other power to enter into this Agreement.
(c) All necessary and requisite corporate proceedings, resolutions and authorizations have been or will be taken, passed, done and given to authorize, permit and enable it to execute and deliver this Agreement.
(d) The execution, delivery and performance entering into of this Agreement are within its powers, have been duly authorized by all necessary action and do will not violate any be in contravention or constitute default under the laws of the terms and conditions in its governing documentsincorporation jurisdiction of the Party or any indenture, any contracts deed, agreement, undertaking or obligation of the Party or to which it is a party or any Applicable Laws;party.
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(ive) There is not pendingare no actions or proceedings pending or, or to its knowledge, knowledge threatened against it or, which challenge the validity of this Agreement or which might result in a material adverse change in the case financial condition of Seller, any of its Related Entities, any legal proceeding that could Party or which would materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the any other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement document in connection with them.
(f) This Agreement is a valid, binding and enforceable obligation of each of the conduct Parties in accordance with its terms.
3.02 LEXARIA hereby represents, warrants and covenants to ENERTOPIA and XxXxxxxxxx that:
(a) None of its business the foregoing representations and it has the capacity warranties contains any untrue statement of a material fact or ability omits to provide or receive the Power Product as contemplated by this Agreementstate any material fact.
(b) On The issuance of the Effective DateShares by LEXARIA to ENERTOPIA and to XxXxxxxxxx as contemplated herein is being made pursuant to exemptions from the registration and prospectus requirements of applicable securities laws pursuant to Regulation D for persons who are a U.S. Person under the United States Securities Act of 1933, and to Section 2.12 of National Instrument 45-106 Prospectus and Registration Exemptions and in an offshore transaction to a person who is not a U.S. Person pursuant to Regulation S under the United States Securities Act of 1933, as amended (the "1933 Act") and ENERTOPIA and XxXxxxxxxx confirms to and covenants with LEXARIA that:
(i) Each Party covenants it and he will comply with all requirements of applicable securities laws in connection with the issuance to it of the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementshares and the resale of any of the Shares; and
(ii) If Section 1.02(athe Shares have not been registered under the 1933 Act or the securities laws of any State of the United States and that LEXARIA does not intend to register the Shares under the Securities Act of 1933, or the securities laws of any State of the United States and has no obligation to do so.
(j) provides that Upon the Generating Facility issuance of the Shares to ENERTOPIA and XxXxxxxxxx and until such time as is an Existing Qualifying Facilityno longer required under applicable securities laws, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitycertificates representing the Shares will bear legends in substantially the form set forth in Schedule "A" hereto.
Appears in 2 contracts
Samples: Acquisition and Joint Venture Agreement (Lexaria Corp.), Acquisition and Joint Venture Agreement (Enertopia Corp.)
Representations, Warranties and Covenants. Of TheraCour. TheraCour represents, warrants and covenants to the Company as follows:
(a) On the Effective Date, each Party represents TheraCour has full legal power to execute and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of deliver this Agreement are within and to perform its powers, obligations hereunder. All acts required to be taken by TheraCour to enter into this Agreement and to carry out the transactions contemplated hereby have been duly authorized by all necessary action properly taken; and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This this Agreement constitutes a legally legal, valid and binding obligation of TheraCour enforceable against it in accordance with its terms, subject to any Equitable Defenses;.
(ivb) There is not pending, or TheraCour has such knowledge and experience in financial and business matters as to its knowledge, threatened against it orbe capable of evaluating the merits and risks of an investment in the Company’s securities and has obtained, in its judgment, sufficient information about the case Company to evaluate the merits and risks of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;an investment in the Company.
(vc) No Event of Default TheraCour is relying solely on the representations and warranties contained in Section 2 hereof, the information contained in the Company’s filing with respect to it has occurred the Securities and is continuing Exchange Commission (“SEC”) and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and in certificates delivered hereunder in making its decision to enter into this Agreement is based upon and consummate the transactions contemplated hereby and no oral representations or warranties of any kind have been made by the Company or its officers, directors, employees or agents to TheraCour.
(d) TheraCour represents, warrants and agrees that (i) the Exchange Shares it receives will be acquired for investment purposes only for their own judgmentaccount or for the account of controlled affiliates, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that they have no present intention of selling, granting any participation in reliance upon or otherwise distributing the advice or recommendations same, (ii) it has not been formed for the specific purpose of acquiring the Exchange Shares, (iii) that it is financially sophisticated and is able to fend for itself, can bear the economic risk of the other Party investment, and has such knowledge and experience in financial or business matters that it is capable of assessing evaluating the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
the investment in the Exchange Shares, (viiiv) It has not relied on any promises, representations, statements it is an “accredited investor” or information a “qualified institutional buyer” within the meaning of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementcurrent SEC rules.
(be) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides TheraCour understands that the Generating Facility Exchange Shares it is receiving hereunder are “restricted securities” under U.S. federal securities laws inasmuch as they will be acquired by it from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such Exchange Shares may be resold without registration only in certain limited circumstances. TheraCour further understands that the Exchange Shares may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the any stock exchange unless there is an Existing Qualifying Facilityeffective registration statement covering the Exchange Shares or the Exchange Shares are being sold or transferred in reliance on an exemption, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.including without limitation Regulation S.
Appears in 1 contract
Samples: Deferred Expense Exchange Agreement (Nanoviricides, Inc.)
Representations, Warranties and Covenants. by the Company and the ---------------------------------------------------------------------- Vendor respecting the Company. In order to induce the Purchaser to enter into ------------------------------- and consummate this Agreement, each of the Vendor and the Company hereby, jointly and severally, also represents to, warrants to and covenants with the Purchaser, with the intent that the Purchaser will also rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the knowledge, information and belief of each of the Vendor and the Company, after having made due inquiry: Corporate Status of the Company -------------------------------
(a) On the Effective Date, each Party represents Company is a company with limited liability duly and warrants to the other Party that:
(i) It is duly organized, properly organized and validly existing and in good standing subsisting under the laws of the People's Republic of China being the only jurisdiction where it is required to be registered for the purpose of enabling it to carry on its formationbusiness and own its property as presently carried on and owned;
(iib) The executionthe Company has good and sufficient power, delivery authority and performance of right to own or lease its property, to enter into this Agreement are within and to perform its powers, have obligations hereunder; Authorization -------------
(c) this Agreement has been duly authorized authorized, executed and delivered by all necessary action the Vendor and do not violate any of the terms Company and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally legal, valid and binding obligation of the Vendor and the Company, enforceable against it the Vendor and/or the Company, as the case may be, by the Purchaser in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pendingexcept as enforcement may be limited by bankruptcy, or to its knowledge, threatened against it or, insolvency and other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the case discretion of Seller, any a court of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementcompetent jurisdiction;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Representations, Warranties and Covenants. The Member hereby represents, warrants and covenants to the Company that the following statements are true and correct as of the Effective Date:
(a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It Member is duly organizedincorporated, organized or formed (as applicable), validly existing existing, and (if applicable) in good standing under the laws Law of the jurisdiction of its incorporation, organization or formation;
(ii) The ; and the Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery delivery, and performance of this Agreement are within its powers, by the Member have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawstaken;
(iiib) This Agreement constitutes a legally the Member has duly executed and delivered this Agreement, and it constitutes the legal, valid and binding obligation enforceable of the Member enforceable against it in accordance with its termsterms (except as may be limited by bankruptcy, subject to any Equitable Defensesinsolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);
(ivc) There the Member is not pendingacquiring its Membership Interest based upon its own investigation, or to its knowledge, threatened against it or, in and the case of Seller, any exercise by the Member of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event rights and the performance by such Member of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is will be based upon its own judgmentinvestigation, not in reliance upon the advice or recommendations analysis and expertise; its acquisition of the other Party and it its Membership Interest (i) is capable of assessing the merits of and understandingbeing made for its own account for investment, and understands not with a view to the sale or distribution thereof in violation of applicable securities Laws, (ii) is being made pursuant to a valid exemption from registration under the Securities Act and accepts any applicable state securities Laws and in accordance with those Laws, and (iii) does not subject the terms, conditions and risks of this AgreementCompany to regulation under the Investment Company Act;
(viid) It has that Member is (i) not relied on any promisesan “investment company” or company “controlled” by an “investment company” within the meaning of the Investment Company Act, representationsand (ii) is exempt from, statements or information not subject to, regulation as a “holding company” or a “subsidiary company” of any kind whatsoever that are not contained a “holding company,” in this Agreement each case as such term is defined in deciding to enter into this Agreementthe Public Utility Holding Company Act of 1935, as amended; and
(viiie) It has entered into this Agreement in connection no facts exist with respect to that Member that will either (i) cause the conduct assets of its business and it has the capacity Company to be “plan assets” within the meaning of ERISA, or ability (ii) give rise to provide a “prohibited transaction” (within the meaning of Section 406(a) or receive the Power Product as contemplated by this Agreement.
(b) On of ERISA or Section 4975 of the Effective Date:
(iCode) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility which no exemption is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityavailable.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Adviser represents warrants and warrants to the other Party thatagrees as follows:
(i) It Adviser has full power, right, and authority to execute and deliver this Agreement and to consummate the transactions contemplated in this Agreement and neither this Agreement nor the services to be performed under it will constitute or result in a breach or default under, or conflict with or violate, any of its constituent documents, applicable law, rules or regulation or any other contract, agreement or undertaking to which it is duly organized, validly existing and in good standing under subject or by which it is bound;
(ii) To the laws best knowledge of the jurisdiction Adviser, neither it nor any of its formationemployees are the subject of any current, pending, or threatened investigations or enforcement proceedings brought by the SEC or any other regulatory body, including any U.S. state securities regulator;
(iii) The Adviser is currently registered as an investment adviser with the SEC; and
(iv) All representations, warranties, and covenants made in this Section 10(a) shall remain true and correct throughout the Term of this Agreement (as defined below), and if any representations, warranties, or covenants in this Agreement cease to be true and correct, the Adviser will promptly inform Client of that occurrence.
(b) The Client represents, warrants, and agrees as follows:
(i) To the best of its knowledge, the Client is not a party to any pending or threatened legal, administrative, arbitral, or other proceedings, claims, or governmental or regulatory investigations of any nature against it or its properties or assets and there is no injunction, order, judgment, decree or regulatory restriction imposed specifically upon it or any of its properties or assets, in each case that could impair the ability of Client to meet its obligations hereunder;
(ii) The execution, delivery and performance Client represents that the engagement of this Agreement are within its powers, have been duly Adviser is authorized by all, and has been undertaken in accordance with and is not inconsistent with any, documents and applicable procedures governing or relating to the Account. The Client will furnish the Adviser with true and complete copies of all necessary action and do not violate any of such documents as may be requested by the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable LawsAdviser;
(iii) This All representations, warranties, and covenants set forth in this Agreement constitutes (including all Exhibits to this Agreement) shall remain true and correct throughout the Term of this Agreement (as defined below), and if any representations, warranties, or covenants in this Agreement cease to be true and correct, or if Client has a legally valid reason to believe that any representations, warranties or covenants may be incorrect or misleading, Client will promptly inform Adviser of that occurrence and binding obligation enforceable against it in accordance with its terms, subject the circumstances related to any Equitable Defensesit;
(iv) There is The Client understands that (A) the Adviser and its affiliates are not pendingresponsible for any content provided about any investment recommended to the Client from any third party, including without limitation by any issuer, the Custodian, other service providers, or any other third parties, even if that information is distributed to its knowledgethe Client on behalf of a third party by the Adviser, threatened against it or, in and (B) neither the case of Seller, Adviser nor any of its Related Entities, affiliates are liable for any legal proceeding that could materially adversely affect its ability to perform under this Agreementtype of loss or damage associated with information provided by a third party;
(v) No Event of Default with respect The Client (A) acknowledges that the Adviser’s decision to it has occurred take certain actions, including limiting access to, suspending, or closing the Client’s Account, may be based on confidential criteria that are essential to the Adviser’s risk management and security protocols, and (B) agrees that the Adviser is continuing and under no such event or circumstance will occur as a result obligation to disclose the details of its entering into or performing its obligations under this Agreementrisk management and security procedures to the Client;
(vi) It The Client acknowledges that the Adviser’s investment advice will be based, in part, on information that has been provided to the Adviser by the Client and that, to the extent any of that information is acting for its own accountincorrect, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon it could negatively affect the advice or recommendations quality of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreementadvice;
(vii) It has not relied on any promisesThe Client understands that by providing the Adviser with an email address pursuant to Section 17(b) below, representationsit consents to the receipt of statements, statements reports, and other communications relating to the Account or information Adviser in electronic form;
(viii) The Client is solely responsible for reviewing, understanding, and complying with the terms of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementthe Adviser’s Privacy Policy [link] and Terms and Conditions [link]; and
(viiiix) It The Client has entered into received the Brochure and any Brochure Supplements required by Part 2B of the Adviser’s Form ADV prior to the execution of this Agreement and is solely responsible for reading and understanding the content of the Brochure and Brochure Supplements (including without limitation all risk disclosures and conflicts of interest set forth in connection with the conduct of its business each) and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants any and all relevant documents provided to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that Client regarding investments made through the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityAccount.
Appears in 1 contract
Samples: Investment Advisory Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each 2.01 Each Party represents and warrants to the other Party hereto that, to the best of its knowledge:
(ia) It is duly organizedit has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement, validly existing and in good standing under the laws of the jurisdiction of its formationexcept where regulatory or shareholder approval may be required;
(iib) The execution, neither the execution and delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate nor any of the terms and conditions Agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated conflict with, result in its governing documentsthe breach of or accelerate the performance required by, any contracts agreement to which it is a party or any Applicable Lawsexcepting only variances required under finance documents;
(iiic) This Agreement constitutes a legally valid the Stockgroup Assets and binding obligation enforceable against it in accordance the SMC Assets purchased hereby and hereby contributed to the Joint Venture shall be sold and contributed free and clear of encumbrances of any nature and the same are sold and contributed with its termsfull right, subject title, and interest to the Joint Venture and free of claims by any Equitable Defensesparty whatsoever;
(ivd) There is in particular, but not pendingto limit the generality, or Stockhouse warrants that it has effected accommodation with Hewlett Packard ("HP") in respect to its knowledge, threatened against it or, GSA ("HP GSA") and that HP has released the assets purchased by Stockgroup and contributed by SMC from all claims; and
(e) the execution and delivery of this Agreement and the Agreements contemplated hereby will not violate or result in the case breach of Seller, the laws of any jurisdiction applicable or pertaining thereto or of its Related Entitiesconstating documents.
2.02 Each Party covenants, any legal proceeding that could materially adversely affect its ability warrants and agrees with the other:
(a) to perform or cause to be performed its obligations and commitments under this Agreement;
(vb) No Event not to engage either alone or in association with others in any activity in respect of Default with respect to it has occurred and is continuing and no such event the JV Assets or circumstance will occur the Project except as a result of its entering into provided or performing its obligations under authorized by this Agreement;
(vic) It is acting for to be just and faithful in all its own account, activities and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of dealings with the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this AgreementParty; and
(viiid) It has entered any information which the Parties may provide to each other or the Joint Venture or any permissible person or company will be accurate and complete in all material respects and not misleading, and will not omit to state any fact or information which would be material to the Parties or the Joint Venture or such permissible person or company.
2.03 The representations, warranties and covenants hereinbefore set out are conditions on which the Parties have relied in entering into this Agreement and each Party shall indemnify and save the other harmless from all loss, damage, costs, actions and suits arising out of or in connection with the conduct any breach of its business any representation, warranty, covenant, agreement or condition made by them and it has the capacity or ability to provide or receive the Power Product as contemplated by contained in this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Joint Venture Agreement (Stockgroup Information Systems Inc)
Representations, Warranties and Covenants. 7.1 The Company represents and warrants as follows:
(a) On the Effective Date, each Party represents and warrants to the other Party that:
The Company (i) It is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of its formation;
Delaware, (ii) has all requisite corporate power and legal right to own and operate its property, to lease the property it leases, and to carry on its business as now being conducted, and (iii) is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect.
(b) The executionCompany has all necessary corporate power and authority to execute and deliver this Agreement and all other instruments and documents to be delivered hereunder, and to perform its obligations hereunder and thereunder and to enter into the transactions contemplated hereby and thereby. The execution and delivery and performance by the Company of this Agreement are within and the other instruments and documents to be delivered hereunder to which it is a party, and the performance of its powersobligations hereunder and thereunder and its entering into the transactions contemplated hereby and thereby, have been duly authorized by all necessary action and do not violate any corporate action.
(c) None of the terms execution and conditions delivery by the Company of this Agreement and the other Loan Documents to which it is a party, and the performance of its obligations hereunder and thereunder and its entering into the transactions contemplated hereby and thereby, will conflict with or contravene, or result in its governing documentsa breach of or a default under, (i) the Company’s certificate of incorporation or bylaws, or (ii) any contracts material law, rule or regulation applicable to it, or (iii) any material agreement or instrument to which it is a party or by which it or any Applicable Laws;of its property is bound or subject, or (iv) any material order, regulation, writ, judgment, injunction or decree of any court or governmental authority or agency binding on or affecting it or any of its property; and the same will not result in or require the creation of any material Adverse Claim upon or with respect to any of its properties (except as contemplated under this Agreement).
(iiid) No authorization or approval or other action by, and no notice to or filing (other than informational filings) with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement or any other document or instrument to be delivered hereunder or for the validity or enforceability hereof or thereof, except for (i) filing of the UCC financing statement referred to in Section 2, which, at the time required in Section 2, will have been duly made and be in full force and effect and (ii) authorizations and approvals that have been received and are in full force and effect as of the Closing Date.
(e) This Agreement constitutes a legally the legal, valid and binding obligation of the Company enforceable against it the Company in accordance with its terms, subject to any Equitable Defenses;except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or law).
(ivf) There is not Except as disclosed in SEC Reports filed prior to the Closing Date, there are no actions, suits or proceedings pending, or to the knowledge of the Company threatened, against or affecting the Company or any subsidiary, or the property of the Company or of any subsidiary, in any court, or before any arbitrator of any kind, or before or by any governmental body, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any subsidiary is in default with respect to any order of any court, arbitrator or governmental body except for defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Receivable is (i) together with the Contract related thereto, legally and beneficially owned by the Company free and clear of any Adverse Claim (except as created hereunder), and (ii) at the time a security interest therein is granted hereunder, and to the extent included at any time in the Net Receivables Pool Balance or identified as such in any Monthly Report, an Eligible Receivable.
(h) Each Monthly Report (if prepared by the Company, or to the extent that information contained therein is supplied by the Company), information, exhibit, financial statement, document, book, record or report furnished at any time by the Company to the Agent or any Lender in connection with this Agreement is accurate in all material respects as of its knowledgedate or (except as otherwise disclosed to the Agent or such Lender, threatened against it oras the case may be, at such time) as of the date so furnished, and no such document contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that, with respect to forward looking statements, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time and notes that there can be no assurance that such expectations, beliefs or projections will be achieved or accomplished and that such projections are subject to an increasing degree of uncertainty as they relate to later periods of time.
(i) [Reserved].
(j) The Company has, and is, not (i) engaged in any non-exempt “prohibited transaction” as defined in Part 4 of Title I(B) of ERISA; (ii) engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan,” as defined in ERISA; or (iii) terminated or terminating any “plan,” as defined in Title IV of ERISA. The Company does not have (A) any “accumulated funding deficiency” as defined in Section 302(a)(2) of ERISA or (B) any “reportable event” as defined in Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived by regulation.
(k) The Company is not engaged principally, or as one of its important activities, in the case business of Sellerextending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock, as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System from time to time, and no part of the proceeds of any Revolving Loan hereunder will be used to buy or carry any margin stock. No part of the proceeds of any Revolving Loan hereunder will be used to acquire stock of any corporation the board of directors of which has publicly stated its Related Entities, any legal proceeding that could materially adversely affect its ability opposition to perform under this Agreement;such acquisition or fails to endorse such acquisition.
(vl) No Event This Agreement, together with the filing of Default the financing statement contemplated by Section 2, is effective to, and shall, create in favor of the Agent a valid and perfected first priority security interest in each Receivable existing or hereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, except as created in connection herewith. There have been duly filed all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Agent’s security interest in that portion of the Collateral with respect to which a financing statement can perfect a security interest.
(m) The jurisdiction of organization, principal places of business and chief executive office of the Company and the offices where it keeps all of its Records are located at the address(es) listed on the Perfection Certificate. The Company’s organizational number assigned to it by its jurisdiction of organization and the Company’s Federal Employer Identification Number are correctly set forth on the Perfection Certificate. The Company has occurred not, within a period of five years prior to the Closing Date, (i) changed the location of its principal place of business or chief executive office or its organizational structure or the offices where it keeps all of its Records, (ii) changed its “location” (within the meaning of Section 9-307 of the UCC as in effect in all applicable jurisdictions), or (iii) become a “new debtor” (as defined in Section 9-102(a)(56) of the UCC as in effect in all applicable jurisdictions) with respect to a currently effective security agreement previously entered into by any other Person. The Company has not changed its jurisdiction of organization. The Company is a Delaware corporation and is continuing and no such event or circumstance will occur a “registered organization” (within the meaning of Section 9-102 of the UCC as a result in effect in the State of its entering into or performing its obligations under this Agreement;Delaware).
(vin) It is acting for its own accountThe names and addresses of all the Blocked Account Banks, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon together with the advice or recommendations account numbers of the other Party and it is capable of assessing Blocked Accounts at each such Blocked Account Bank, are listed in the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It Perfection Certificate. The Company has not relied on granted any promisesPerson, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with other than the conduct of its business and it has the capacity or ability to provide or receive the Power Product Agent as contemplated by this Agreement, dominion and control or “control” (within the meaning of Section 9-104 of the UCC of all applicable jurisdictions) of any P.O. Box or Blocked Account, or the right to take dominion and control or “control” (within the meaning of Section 9-104 of the UCC of all applicable jurisdictions) of any such P.O. Box or Blocked Account at a future time or upon the occurrence of a future event. The Company has taken all steps necessary to ensure that the Agent has “control” (within the meaning of Section 9-104 of the UCC of all applicable jurisdictions) over all Blocked Accounts. Except for proceeds of Excluded Receivables, no funds other than the proceeds of Receivables are deposited to any Blocked Account.
(bo) On Except as disclosed in SEC Reports filed prior to the Effective Closing Date:, the Company represents and warrants that since June 30, 2004, no event has occurred that would have a Material Adverse Effect.
(p) In the past five years, Company has not changed its legal name, used any corporate or other names or assumed names other than the name in which it has executed this Agreement other than as set forth in the Perfection Certificate.
(q) The Company is not, and after giving effect to the transactions contemplated hereby, will not be (i) Each Party covenants required to register as, an “investment company” within the other Party thatmeaning of the Investment Company Act of 1940, it has as amended; or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(aa “holding company,” a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company,” as each such term is defined in the Public Utility Holding Company Act of 1935, as amended.
(r) provides The Company has complied in all material respects with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of its businesses or the ownership of its property, except for any failure to comply with any of the foregoing that could not reasonably be expected to have a Material Adverse Effect.
(s) To the Generating Facility best of the Company’s knowledge and belief, each Receivable, together with the Contract related thereto, does not contravene any laws, rules or regulations applicable thereto (including laws, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices or privacy), and no part of such Contract is an Existing Qualifying Facilityin violation of any such law, thenrule or regulation.
(t) The Company has complied in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract except where the failure to so comply could not reasonably be expected to result in a Material Adverse Effect, Seller represents and warrants since the Closing Date has not made any change to Buyer that such Credit and Collection Policy in a manner prohibited hereunder and as to which the Generating Facility qualifies Agent has been notified, and if applicable, as an Existing Qualifying Facilityto which the Agent has consented.
(u) To the Company’s knowledge, each Contract with respect to each Receivable is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(v) The Company has determined that, immediately after giving effect to each borrowing hereunder, the aggregate outstanding principal amount of Revolving Loans does not exceed the lesser of the Borrowing Base and the Revolving Line of Credit.
(w) The Company has identified the Receivables on its books and records (including any accounting system) as being subject to a security interest in favor of the Agent in connection with this Agreement, and the Receivables constitute a portion of the “Domestic Utilities” reporting segment on the Company’s financial statements.
Appears in 1 contract
Samples: Financing Agreement (Aquila Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It it is duly organized, validly existing and a “qualified institutional buyer” as defined in good standing Rule 144A under the laws Securities Act of 1933 as amended (the “Securities Act”) or an “accredited investor” as defined in Section 2(a)(15)(ii) of the jurisdiction Securities Act; and
(ii) it is an “eligible contract participant” as defined in the Commodity Exchange Act, as amended (the “CEA”), and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Deutsche as of its formationthe date hereof that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares and “material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer;
(ii) The it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iii) it is entering into this Confirmation and the Transaction in good faith, not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(iv) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act);
(v) Counterparty owns (as such term is used in Rule 16c-4 under the Exchange Act) a number of Shares (including the Shares pledged to Deutsche pursuant to the “Collateral” provision in Section 2 above), after subtracting the number of Shares to which any put equivalent positions (as defined in Rule 16a-1(h) under the Exchange Act) have been established or are maintained by Counterparty (other than any put equivalent position established as a result of the Transaction), at least equal to the aggregate Number of Transaction Options;
(vi) Counterparty is and, after giving effect to the Transaction, will be in compliance with its reporting obligations under Section 16 and Section 13 of the Exchange Act and Counterparty will provide Deutsche with a copy of any report filed thereunder in respect of the Transaction promptly upon filing thereof; and
(vii) Counterparty is not a resident of the United States.
(c) In connection with this Confirmation and the Transaction, Counterparty agrees that:
(i) it shall not enter into or alter any hedging transaction relating to the Shares (x) corresponding to or offsetting the Transaction, at any time or (y) otherwise, prior to the Settlement Date for the Component with the latest Expiration Date;
(ii) it shall, upon (x) the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default, a Potential Event of Default or a Termination Event in respect of which it is an Affected Party or (y) upon obtaining knowledge of any Potential Adjustment Event, an Extraordinary Event or an Additional Disruption Event, notify Deutsche within one Scheduled Trading Day of the occurrence of such event or of obtaining such knowledge, as the case may be; provided, however, that should Counterparty be in possession of material non-public information regarding the Issuer or the Shares, Counterparty shall only communicate such information to Deutsche in connection with this Transaction as follows: By facsimile to: +0 000 000 0000 and By email to: xxxxxx.xxxxxx@xx.xxx Attention: Xxxxxx Xxxxxx
(iii) for the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, it shall deliver the applicable IRS Form W-8 or W-9 (or any successor of such Form), completed accurately, (x) before the Trade Date for the Original Confirmation, (y) promptly upon reasonable demand by Deutsche and (z) promptly upon learning that the information on any such previously delivered Form is inaccurate.
(d) Counterparty represents and warrants to, and covenants with, Deutsche as of the date hereof and any date on which Counterparty makes payment to Deutsche in connection with any settlement hereunder, that it is or will be, as the case may be, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the business in which it engages.
(e) For the avoidance of doubt, and without limiting any representation contained in Section 3(a)(iii) of the Agreement, Counterparty represents that the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action Confirmation and do not violate any of other documentation relating to the terms and conditions in its governing documents, any contracts Confirmation to which it is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, lockup agreement, registration rights agreement, confidentiality agreement, co-sale agreement or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and other agreement binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, on Counterparty or to its knowledge, threatened against it or, in the case of Seller, affecting Counterparty or any of its Related Entitiesassets, and that Counterparty has delivered to Deutsche on or before the Trade Date a true and complete copy of each such agreement.
(f) Counterparty represents and warrants to Deutsche as of the date hereof that the Transaction will not violate any corporate policy of the Issuer (including, but not limited to, any legal proceeding that could materially adversely affect its ability window period policy) or other rules or regulations of the Issuer applicable to perform under this Agreement;Counterparty.
(vg) No Event Each of Default with respect to it has occurred Deutsche and is continuing and no such event Counterparty agrees that notwithstanding anything provided herein or circumstance will occur as a result of its entering into or performing its obligations under this the Agreement;
(vi) It is acting for its own account, and its decision notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to enter into this Agreement is based disclose to any and all persons, beginning immediately upon its own judgmentcommencement of their discussions and without limitation of any kind, not in reliance upon the advice or recommendations tax treatment and tax structure of the other Party and it is capable of assessing the merits of and understandingTransaction, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information all materials of any kind whatsoever (including opinions or other tax analyses) that are not contained in this Agreement in deciding provided by either party to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business other relating to such tax treatment and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementtax structure.
(bh) On The parties intend for the Effective Date:Original Confirmation, as amended and restated hereby, to constitute a “binding commitment” as described in the letter dated December 14, 1999 submitted by Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx to Xxxxxxx Xxxxxx of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretative letter dated December 20, 1999 or a “contract” as described in the letter dated November 30, 2011 submitted by Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxx to Xxxxxx Xxx of the Staff to which the Staff responded in an interpretive letter dated December 1, 2011.
(i) Each Party covenants Deutsche confirms that an affiliate of Deutsche that is registered as a broker and a dealer with the Securities and Exchange Commission and is a “market maker” or a “block positioner,” as such terms are used in Rule 144, with respect to the other Party thatShares has, it has or will timely acquire all regulatory authorizations necessary for it as promptly as practicable consistent with market conditions, introduced into the public market a quantity of securities of the same class as the shares equal to legally perform its obligations under this Agreement; andthe Number of Transaction Options.
(iij) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller Counterparty represents and warrants to, and covenants with, Deutsche that, Counterparty shall file or cause to Buyer be filed, on or prior to March 29, 2012 and in the manner contemplated by Rule 144(h) under the Securities Act, a notice on Form 144 relating to the Transaction contemplated hereby in form and substance that the Generating Facility qualifies as an Existing Qualifying Facilityacceptable to Deutsche.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It it is duly organized, validly existing and a “qualified institutional buyer” as defined in good standing Rule 144A under the laws Securities Act of 1933 as amended (the “Securities Act”) or an “accredited investor” as defined in Section 2(a)(15)(ii) of the jurisdiction Securities Act; and
(ii) it is an “eligible contract participant” as defined in the Commodity Exchange Act, as amended (the “CEA”), and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Deutsche as of its formationthe date hereof that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares and “material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer;
(ii) The it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iii) it is entering into this Confirmation and the Transaction in good faith, not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(iv) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act);
(v) Counterparty owns (as such term is used in Rule 16c-4 under the Exchange Act) a number of Shares (including the Shares pledged to Deutsche pursuant to the “Collateral” provision in Section 2 above), after subtracting the number of Shares to which any put equivalent positions (as defined in Rule 16a-1(h) under the Exchange Act) have been established or are maintained by Counterparty (other than any put equivalent position established as a result of the Transaction), at least equal to the aggregate Number of Transaction Options;
(vi) Counterparty is and, after giving effect to the Transaction, will be in compliance with its reporting obligations under Section 16 and Section 13 of the Exchange Act and Counterparty will provide Deutsche with a copy of any report filed thereunder in respect of the Transaction promptly upon filing thereof; and
(vii) Counterparty is not a resident of the United States.
(c) In connection with this Confirmation and the Transaction, Counterparty agrees that:
(i) it shall not enter into or alter any hedging transaction relating to the Shares (x) corresponding to or offsetting the Transaction, at any time or (y) otherwise, prior to the Settlement Date for the Component with the latest Expiration Date;
(ii) it shall, upon (x) the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default, a Potential Event of Default or a Termination Event in respect of which it is an Affected Party or (y) upon obtaining knowledge of any Potential Adjustment Event, an Extraordinary Event or an Additional Disruption Event, notify Deutsche within one Scheduled Trading Day of the occurrence of such event or of obtaining such knowledge, as the case may be; provided, however, that should Counterparty be in possession of material non-public information regarding the Issuer or the Shares, Counterparty shall only communicate such information to Deutsche in connection with this Transaction as follows: By facsimile to: and By email to: Attention: +0 000 000 0000 xxxxxx.xxxxxx@xx.xxx Xxxxxx Xxxxxx
(iii) for the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, it shall deliver the applicable IRS Form W-8 or W-9 (or any successor of such Form), completed accurately, (x) before the Trade Date for the Original Confirmation, (y) promptly upon reasonable demand by Deutsche and (z) promptly upon learning that the information on any such previously delivered Form is inaccurate.
(d) Counterparty represents and warrants to, and covenants with, Deutsche as of the date hereof and any date on which Counterparty makes payment to Deutsche in connection with any settlement hereunder, that it is or will be, as the case may be, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the business in which it engages.
(e) For the avoidance of doubt, and without limiting any representation contained in Section 3(a)(iii) of the Agreement, Counterparty represents that the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action Confirmation and do not violate any of other documentation relating to the terms and conditions in its governing documents, any contracts Confirmation to which it is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, lockup agreement, registration rights agreement, confidentiality agreement, co-sale agreement or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and other agreement binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, on Counterparty or to its knowledge, threatened against it or, in the case of Seller, affecting Counterparty or any of its Related Entitiesassets, and that Counterparty has delivered to Deutsche on or before the Trade Date a true and complete copy of each such agreement.
(f) Counterparty represents and warrants to Deutsche as of the date hereof that the Transaction will not violate any corporate policy of the Issuer (including, but not limited to, any legal proceeding that could materially adversely affect its ability window period policy) or other rules or regulations of the Issuer applicable to perform under this Agreement;Counterparty.
(vg) No Event Each of Default with respect to it has occurred Deutsche and is continuing and no such event Counterparty agrees that notwithstanding anything provided herein or circumstance will occur as a result of its entering into or performing its obligations under this the Agreement;
(vi) It is acting for its own account, and its decision notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to enter into this Agreement is based disclose to any and all persons, beginning immediately upon its own judgmentcommencement of their discussions and without limitation of any kind, not in reliance upon the advice or recommendations tax treatment and tax structure of the other Party and it is capable of assessing the merits of and understandingTransaction, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information all materials of any kind whatsoever (including opinions or other tax analyses) that are not contained in this Agreement in deciding provided by either party to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business other relating to such tax treatment and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementtax structure.
(bh) On The parties intend for the Effective Date:Original Confirmation, as amended and restated hereby, to constitute a “binding commitment” as described in the letter dated December 14, 1999 submitted by Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx to Xxxxxxx Xxxxxx of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretative letter dated December 20, 1999 or a “contract” as described in the letter dated November 30, 2011 submitted by Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxx to Xxxxxx Xxx of the Staff to which the Staff responded in an interpretive letter dated December 1, 2011.
(i) Each Party covenants Deutsche confirms that an affiliate of Deutsche that is registered as a broker and a dealer with the Securities and Exchange Commission and is a “market maker” or a “block positioner,” as such terms are used in Rule 144, with respect to the other Party thatShares has, it has or will timely acquire all regulatory authorizations necessary for it as promptly as practicable consistent with market conditions, introduced into the public market a quantity of securities of the same class as the shares equal to legally perform its obligations under this Agreement; andthe Number of Transaction Options.
(iij) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller Counterparty represents and warrants to, and covenants with, Deutsche that, Counterparty shall file or cause to Buyer be filed, on or prior to March 29, 2012 and in the manner contemplated by Rule 144(h) under the Securities Act, a notice on Form 144 relating to the Transaction contemplated hereby in form and substance that the Generating Facility qualifies as an Existing Qualifying Facilityacceptable to Deutsche.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party The Debtor represents and warrants to and covenants with the other Party Lender that:
(a) Its chief executive office is at the address shown above on page 1;
(i) It The Debtor’s name as it appears in this agreement is identical to the name of the Debtor appearing in the Debtor’s organizational documents, as amended, including any trust documents; and (ii) both the Taxpayer I.D. No. and the State Organization No., if any, shown above are correct;
(c) If Debtor is not a natural person, (i) that it is duly organized, validly existing and in good standing under pursuant to the laws of the jurisdiction of its formation;
under which it is organized; and (ii) The execution, that the execution and delivery of this agreement and the performance of this Agreement the obligations it imposes (A) are within its powers, powers and have been duly authorized by all necessary action of its governing body; (B) do not contravene the terms of its articles of incorporation or articles of organization, its by-laws, or any partnership agreement, operating agreement or other agreement governing its affairs;
(d) The execution and delivery of this agreement and the performance of the obligations it imposes do not violate any of the terms and conditions in its governing documentslaw, conflict with any contracts to agreement by which it is a party bound, or require the consent or approval of any governmental authority or any Applicable Lawsthird party;
(iiie) This Agreement constitutes agreement is a legally valid and binding obligation agreement, enforceable against it in accordance with according to its terms, subject to any Equitable Defenses;
(ivf) There is All balance sheets, profit and loss statement, and other financial statements furnished to the Lender are accurate and fairly reflect the financial condition of the organizations and persons to which they apply on their effective dates, including contingent liabilities of every type, which financial condition has not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could changed materially and adversely affect its ability to perform under this Agreementsince those dates;
(vg) It will pay its Liabilities to the Lender;
(h) It is or will become the owner of the Collateral free from any liens, encumbrances or security interests, except for Permitted Liens (as defined in the Loan Agreement dated September 25, 2008 between Debtor and Lender, as it may be amended or modified from time to time), and will defend the Collateral against all claims and demands of all persons at any time claiming any interest in it;
(i) No Event person, other than Lender, has possession or control of Default the Collateral (as defined in the UCC);
(j) It will keep the Collateral free of liens, encumbrances and other security interests except for this security interest and Permitted Liens, maintain it in good repair (ordinary wear and tear excepted), not use it illegally, and exhibit it to the Lender on demand;
(k) It will protect the Collateral from loss, damage, or deterioration from any cause (ordinary wear and tear excepted). At its own expense, the Debtor will maintain comprehensive casualty insurance and other insurance as may be reasonably required by Lender on the Collateral against such risks, in such amounts, with such deductibles and with such companies as may be reasonably satisfactory to the Lender, and provide the Lender with proof of insurance acceptable to the Lender. Each insurance policy shall contain a lender’s loss payable endorsement satisfactory to the Lender and a prohibition against cancellation or amendment of the policy or removal of the Lender as loss payee without at least 30 days prior written notice to the Lender. In all events, the amounts of such insurance coverages shall conform to prudent business practices and shall be in such minimum amounts that the Debtor will not be deemed a co-insurer. If Debtor fails to maintain such insurance, Lender has the option (but not the obligation) to do so and Debtor agrees to repay all amounts so expended by Lender immediately upon demand, together with interest at the highest lawful default rate which could be charged by Lender on any of the Liabilities;
(l) It will not sell or offer to sell, lease, license or otherwise transfer the Collateral, nor change the location of the Collateral, without the written consent of the Lender, except for sale of Inventory in the ordinary course of business;
(m) It will pay promptly when due all taxes and assessments upon the Collateral, or for its use or operation. If Debtor fails to pay any of these taxes, assessments, or other charges in the time provided above, Lender has the option (but not the obligation) to do so and Debtor agrees to repay all amounts so expended by Lender immediately upon demand, together with interest at the highest lawful default rate which could be charged by Lender on any of the Liabilities;
(n) No financing statement covering all or any part of the Collateral or any proceeds is on file in any public office, unless in connection with Permitted Liens or the Lender has approved that filing. Debtor irrevocably authorizes Lender to file one or more financing statements in form reasonably satisfactory to the Debtor and Lender and will pay the cost of filing them in all public offices where filing is deemed by the Lender to be necessary or desirable. In addition, the Debtor shall execute and deliver, or cause to be executed and delivered, such other documents as the Lender may from time to time reasonably request to perfect or to further evidence the security interest created in the Collateral by this agreement, including, without limitation: (i) any certificates of title to the Collateral with the security interest of the Lender noted thereon or executed applications for such certificates of title in form satisfactory to the Lender; (ii) any assignments of claims under government contracts which are included as part of the Collateral, together with any notices and related documents as the Lender may from time to time request; (iii) any assignment of any specific account receivable as the Lender may from time to time request; (iv) a notice of security interest and a control agreement with respect to it has occurred any Collateral, all in form and is continuing substance satisfactory to the Lender; (v) a notice to and no such event acknowledgment from any bailee or circumstance will occur as a result other person in possession of its entering into or performing its obligations under this Agreementany Collateral, all in form and substance satisfactory to the Lender; and (vi) any consent to the assignment of proceeds of any letter of credit, all in form and substance satisfactory to the Lender;
(vio) Lender has no obligation to acquire or perfect any lien on or security interest in any asset(s), whether real property or personal property, to secure payment of the Liabilities, and Debtor is not relying upon assets in which the Lender may have a lien or security interest for payment of the Liabilities.
(p) It will not, without at least fifteen (15) days prior written notice to the Lender, change (i) the Debtor’s name, (ii) the Debtor’s business organization, (iii) the jurisdiction under which the Debtor’s business organization is acting for its own accountformed or organized, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon or (iv) the advice or recommendations address of the other Party and it is capable Debtor’s chief executive office or principal residence or of assessing any additional places of the merits of and understanding, and understands and accepts the terms, conditions and risks of this AgreementDebtor’s business;
(viiq) It has will provide any information that Lender may reasonably request, and will permit Lender upon prior notice to inspect and copy its books and records during normal business hours;
(r) It will allow the Lender or the Lender’s representative, upon not relied less than three (3) business days notice (which notice shall not be required following the occurrence of an Event of Default) to enter and remain upon all premises where Collateral is kept or may be located and inspect the Collateral during normal business hours provided that Lender’s representatives shall use good faith efforts not to interfere with the normal operations of Debtor;
(s) It will allow the Lender to take such actions in its own name or in Debtor’s name as Lender, in its sole discretion, deems necessary or appropriate to establish exclusive control (as defined in the UCC) over any Collateral of such nature where control perfects the Lender’s security interest.
(t) The Lender shall have the right now and at any time in the future, in its sole and absolute discretion and without notice to the Debtor, to (i) prepare, file, and sign the Debtor’s name on any promisesproof of claim in bankruptcy or similar document against any owner of the Collateral and (ii) prepare, representationsfile, statements and sign the Debtor’s name on any notice of lien, assignment or information satisfaction of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement lien, or similar document in connection with the conduct of its business and it has Collateral. The Debtor authorizes the capacity or ability Lender to provide or receive file financing statements containing any collateral description which reasonably describes the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations Collateral in which a security interest is granted under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityagreement.
Appears in 1 contract
Samples: Continuing Security Agreement (Advanced Photonix Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party A. Each party to this Agreement represents and warrants to the other Party and/or covenants that:;
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have has been duly authorized by all necessary corporate action and, when executed and do not violate any delivered, shall constitute the legal, valid and binding obligation of the terms each party, enforceable in accordance with its terms;
(ii) it has obtained such registrations and conditions in qualifications as are necessary to permit it to perform its governing documents, any contracts to which it is a party or any Applicable Lawsobligations hereunder;
(iii) This the arrangements provided for in this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject will be disclosed to any Equitable Defenses;Clients to the extent required by law; and
(iv) There is not pendingno party to this Agreement will, as principal, purchase any Shares from a Client at a price lower than the net asset value next determined by or for the Fund that issued such Shares. Nothing in this subsection shall prevent Mxxxxx Sxxxxxx from selling Shares for a Client to Company or to its knowledge, threatened against it or, in the case of Seller, Fund which issued such Shares at the net asset value then quoted by or for such Fund (less any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementapplicable contingent deferred sales charge or other charges) and charging a fair commission or service fee for handling the transaction.
B. Xxxxxx Sxxxxxx represents warrants and/or covenants that;
(vi) No Event of Default with respect Mxxxxx Sxxxxxx shall not withhold placing Clients’ orders for Shares so as to it has occurred and is continuing and no such event or circumstance will occur profit themselves as a result of such withholding. Mxxxxx Sxxxxxx shall not purchase any Shares from Company other than for their own investment or to cover purchase orders already received by it from its entering into or performing its obligations under this AgreementClients;
(viii) It is acting for its own account, Mxxxxx Sxxxxxx and its decision agents and employees are not authorized to enter into this Agreement is based upon its own judgmentmake any representations concerning the Funds or their Shares except those contained in or consistent with the Prospectus and such other written materials Company provides relating to the Funds or other statements or representations, not in reliance upon written or oral, which Company furnishes or makes to Mxxxxx Sxxxxxx about the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this AgreementFunds;
(viiiii) It has not relied on any promises, representations, statements or information it is a member of any kind whatsoever that are not contained in this Agreement in deciding the Financial Industry Regulatory Authority (“FINRA”) and agrees to enter into this Agreementnotify the other should it cease to be such a member; and
(viiiiv) It has entered into this Agreement in connection with the conduct of respect to its business and it has the capacity or ability to provide or receive the Power Product as activities contemplated by this AgreementAgreement it will abide by all the applicable rules and regulations of FINRA and all applicable federal and state securities laws.
(b) On the Effective Date:C. Company represents warrants and/or covenants that;
(i) Each Party covenants it is a member of FINRA and agrees to notify the other Party that, should it has or will timely acquire all regulatory authorizations necessary for it cease to legally perform its obligations under this Agreementbe such a member; and
(ii) If Section 1.02(awith respect to its activities contemplated by this Agreement it will abide by all the applicable rules and regulations of FINRA and all applicable federal and state securities laws.
D. The Trust represents warrants and/or covenants that;
(i) provides Fund Shares are registered and authorized for sale in accordance with any and all applicable federal and state securities laws;
(ii) the Prospectus for each Fund complies in all material respects with any and all applicable federal and state securities laws; and
(iii) It shall use its best efforts to cause Shares of the Funds to continue to be registered and/or authorized for sale in accordance with all applicable federal and state securities laws and shall notify Mxxxxx Sxxxxxx promptly in the event any Fund’s Shares cease to be so registered or authorized for sale. In the event that there is a sale of Fund Shares in a jurisdiction where the Fund Shares are not registered and/or authorized for sale, the Trust or its designee shall promptly alert Mxxxxx Sxxxxxx and request that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitytransaction be reversed.
Appears in 1 contract
Samples: Mutual Fund Dealer Agreement (Tributary Funds, Inc.)
Representations, Warranties and Covenants. (a) On In order to induce the Effective DateCompany to permit the undersigned to purchase all, each Party or a designated number of the Offering Shares, the undersigned hereby warrants and represents and warrants to the other Party thatCompany, as follows:
(iA) It is duly organized, validly existing and in good standing under the laws The undersigned’s name is: (please type or print) __________________________
(B) The address of the jurisdiction undersigned’s residence or principal place of its formation;business is:___________________________________ (please type or print)
(iiC) Note: If the undersigned is other than a natural person please state where the entity is incorporated __________. (describe the legal entity making the purchase).
(D) The executionundersigned and its representatives, delivery and performance of this Agreement are within its powersif any, have been duly authorized by all necessary action had full and do not violate any complete access to the PPM regarding the offer and sale of the terms Offering Shares and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations all of the other Party documents referred to therein and have reviewed the same. The undersigned is particularly familiar with the portion of the PPM titled “Risk Factors” and that the pro forma forward looking information, including the Company’s representation that no assurances can be granted that the pro forma projections of revenue and net income will be achieved. The undersigned understands that it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has may not relied rely on any promises, representations, statements information or information of any kind whatsoever representations that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business PPM and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(bE) On The undersigned acknowledges that it, along with its attorney, accountant and any other person(s) it has retained to advise it with respect to this investment (collectively, “representatives”), have had the Effective Date:opportunity to ask questions of and receive answers from representatives of the Company concerning the Offering Shares. The undersigned further acknowledges that the undersigned was informed that all documents, records and books pertaining to the Offering and the Company were at all times available to it. All such documents, records and books requested by it have been made available to it and its representatives. The undersigned and its representatives have been supplied with all additional information concerning the Offering Shares and the Company as they have requested. The foregoing, however, does not limit or modify the representations and warranties of the Company in the PPM or the right of the Investor to rely thereon.
(F) The undersigned acknowledges that it, or its representatives, have enough knowledge and experience in financial and business matters to evaluate the merits and risks of the investment.
(G) The undersigned is able to bear the economic risk of an investment in the Offering Shares including the risk of losing part or all of its investment in the Offering Shares.
(H) The undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of all or any portion of the Offering Shares to satisfy any existing or contemplated undertaking, need or indebtedness.
(I) The undersigned understands the illiquid nature of this investment and acknowledges that the Offering Shares is subject to restrictions on transfer imposed by the Securities Act and the State Acts.
(J) The undersigned is purchasing the Offering Shares for its own account for investment and not with a view to divide, resell, or distribute all or any portion of the Offering Shares.
(K) The undersigned agrees that the Offering Shares it purchases may not be offered, sold or otherwise transferred unless the offer and sale is made pursuant to: (i) Each Party covenants to an effective registration statements under the other Party thatSecurities Act, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(aan exemption from registration under the Securities Act or in a transaction that does not otherwise require registration under the Securities Act or any State Act, and an opinion of counsel reasonably satisfactory to the Company has been provided to that effect.
(L) provides The undersigned understands and acknowledges that upon the Generating Facility original issuance thereof, and until such time as the same is an Existing Qualifying Facilityno longer required under applicable requirements of the Securities Act or the State Acts, thencertificates representing the Offering Shares, Seller represents and warrants all certificates issued in exchange therefore or in substitution thereof, shall bear a legend similar to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityfollowing: “THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘SECURITIES ACT’), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS (i) THE OFFER AND SALE IS MADE PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR IN A TRANSACTION THAT DOES NOT OTHERWISE REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY HAS BEEN PROVIDED TO THAT EFFECT; OR (ii) THE OFFER AND SALE IS REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.” Check if applicable:
Appears in 1 contract
Samples: Stock Subscription and Investment Representation Agreement (American Home Food Products, Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party of Buyer Buyer hereby -------------------------------------------------- represents and warrants to the other Party Seller that:
(ia) It is duly organizedBuyer, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of individuals signing this Agreement are within its powerson behalf of Buyer, have the full legal power, authority, and right to execute and deliver, and to perform their legal obligations under this Agreement, and Buyer's performance hereunder and the transactions contemplated hereby have been duly authorized by all necessary requisite action on the part of Buyer and do not violate any of the terms and conditions in its governing documents, any contracts no remaining action is required to which it is a party or any Applicable Lawsmake this Agreement binding on Buyer;
(iiib) This Agreement constitutes a legally valid Buyer shall deliver to Seller, pursuant to the provisions of the Subsection hereof entitled "Buyer's Environmental Investigation," any and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defensesall environmental reports on or concerning the Property that will be prepared by Buyer or on Buyer's behalf;
(ivc) There is not pendingPrior to closing, Buyer shall hold in strict confidence any and all documents and information relating to the Property which are disclosed to or to its knowledge, threatened against it or, in obtained by Buyer during the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks term of this Agreement;
(vii) It has , and shall not relied disclose any such information to any third party except to the extent necessary to enable Buyer to evaluate the condition of the Property or obtain financing to consummate the Closing and except to representatives of the broker dealer community with whom Buyer or its affiliates have a relationship. Buyer shall inform its representatives, permitted assigns, sources of debt or equity financing and third party consultants of the confidential nature of such information and shall require that they agree to treat such information confidentially. Failure to hold such information in strict confidence shall constitute a material default hereunder on any promises, representations, statements or information the part of any kind whatsoever that are not contained in this Agreement in deciding to enter into this AgreementBuyer; and
(viiid) It has entered into this Agreement in connection with Buyer or its affiliates have the conduct of its business and it has the financial capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If . The provisions of this Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityshall survive Closing or other termination of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Representations, Warranties and Covenants. (a) On Seller represents, warrants and covenants that to the Effective Datebest of it’s knowledge (i) it will possess the sole and exclusive rights and title to the Products and that it is free of any obligations preventing it from assigning to or providing Purchaser the rights and license granted herein; (ii) it has not provided Purchaser with the confidential information of a third party; (iii) no rights of a third party will be violated by the exercise of the rights granted hereunder to Purchaser; (iv) it has, each and throughout the Term will retain, the right to grant the license granted to Purchaser hereunder, and it has not granted and will not grant, and is not under any obligation to grant, to any third party any license, lien, option, encumbrance, or other contingent or non-contingent right, title, or interest in or to the Products and/or GRIT Device that conflicts with the rights and licenses granted to Purchaser hereunder; (v) it will perform all of its obligations hereunder in a professional, workmanlike and competent manner and will comply with any and all laws applicable to the services being provided hereunder; (vi) it shall not design, sell or market any product with the same silhouette or profile as the GRIT Device.
(b) Each Party represents and warrants to the other Party that:
(i) It it is duly organized, validly existing existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of the its jurisdiction of its formationincorporation, organization, or chartering;
(ii) The executionit has, delivery and performance will retain, the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
(iii) the execution of this Agreement are within by its powers, have representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate/organizational action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;Party; and
(iiiiv) This when executed and delivered by such Party, this Agreement constitutes a legally valid will constitute the legal, valid, and binding obligation of that Party, enforceable against it that Party in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On Security Trustee, in its individual capacity, covenants and agrees that it shall not cause or permit to exist any Lien, arising as a result of (i) claims against Security Trustee not related to its interest in the Effective DateAircraft or the administration of the Mortgage Estate pursuant to the Mortgage, each Party (ii) any act of Security Trustee, or failure of Security Trustee to take any action to the extent such act or failure arises from or constitutes gross negligence or willful misconduct, (iii) claims against Security Trustee relating to Taxes or Expenses that are excluded from indemnification pursuant to Section 6 hereof, or (iv) claims against Security Trustee arising out of the transfer by Security Trustee of all or any portion of its interest in the Aircraft, the Mortgage Estate or the Operative Documents other than pursuant to the terms of the Operative Documents.
(b) Lender represents, warrants and covenants that (A) the Note to be issued to it pursuant to the Mortgage is being acquired by it either (x) for investment, and not with a view to any distribution of any thereof, subject, nevertheless that the disposition of the Note shall at all times be within the control of the Lender or (y) in the ordinary course of its commercial lending business, (B) it will not offer or sell any Note in violation of the Securities Act, (C) it will not transfer any Note to any Person unless such Person, in a writing delivered to Borrower makes the representation set forth in Section 7(b) hereof or such other representation that is sufficient for Borrower to reasonably determine, without independent due diligence, that such transfer of Note will not cause Borrower or such Person to engage in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, and (D) it will not transfer any or all of its Notes to any Person that is not a financial institution. Unless Default or an Event of Default has occurred and is continuing or the transfer is at the request of Borrower, Lender shall be responsible for all costs of Borrower and Guarantor in connection with any transfer of all or any its Notes, including reasonable attorney fees incurred in connection therewith.
(c) Security Trustee represents and warrants warrants, in its individual capacity, to the other Party thatBorrower, Guarantor, and Lender as follows:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation[intentionally omitted];
(ii) The execution, delivery it has the corporate power and performance of authority to enter into and perform its obligations under the Mortgage and this Agreement are within its powersand to authenticate the Notes to be delivered on the Closing Date;
(iii) the Operative Documents to which Security Trustee is a party, and the authentication of the Notes to be delivered on the Closing Date, have been duly authorized by all necessary corporate action on its part, and do not violate neither the execution and delivery thereof nor its performance of or compliance with any of the terms and conditions provision thereof will contravene or result in any breach of, or constitute any default under its governing documentscertificate of incorporation or bylaws or the provisions of any indenture, any contracts mortgage, contract or other agreement to which it is a party or any Applicable Lawsby which it or its properties may be bound or affected;
(iiiiv) This Agreement constitutes there are no pending or, to the knowledge of Security Trustee, threatened actions or proceedings against Security Trustee before any court or administrative agency which, if determined adversely to Security Trustee, would materially adversely affect the ability of Security Trustee to perform its obligations under the Operative Documents to which it is a legally party;
(v) no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery or performance by Security Trustee of the Operative Documents to which it is a party; and
(vi) each of the Operative Documents to which Security Trustee is a party has been duly executed and delivered by it and, assuming that each such agreement is the legal, valid and binding obligation of each other party thereto, is the legal, valid and binding obligation of Security Trustee, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to creditors’ rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(d) Lender represents and warrants that it is not acquiring its interest in the Mortgage Estate, any Note or any interests represented thereby with the assets of any “employee benefit plan” as defined in Section 3(3) of ERISA or any “plan” within the meaning of Section 4975(e)(1) of the Code. Borrower represents and warrants that none of (A) the execution and delivery of the Operative Documents, and (B) the consummation of the transactions contemplated by the Operative Documents will involve any prohibited transaction within the meaning of Section 406(a) of ERISA or Section 4975(c)(1)(A) through (D) of the Code (such representation being made in reliance upon and subject to the accuracy of the representations contained in the preceding sentence).
(e) Borrower agrees that it will not consolidate with or merge with or into any Equitable Defensesother corporation or other Person or convey, transfer or lease all or substantially all of its assets as an entirety (whether in one transaction or a series of related transactions) to any Person (“Borrower Successor”) unless:
(i) the Person is a Citizen of the United States (as defined in in Section 40102(a)(15) of the Transportation Code) and is a Certificated Air Carrier, and Security Trustee on behalf of Lender is entitled to the protection of Section 1110 of the Bankruptcy Code in connection with its respective rights to take possession of the Aircraft in the event of a case under Chapter 11 of the Bankruptcy Code in which such Person is a debtor;
(ii) the Person executes and delivers to Lender a duly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to Lender containing an assumption by such Person of the due and punctual payment of the amounts due and to become due under the Notes and the due and punctual performance and observance of each covenant and condition of the Operative Documents to be performed or observed by Borrower;
(iii) immediately after giving effect to such transaction, no Default or Event of Default has occurred or is continuing and Borrower shall have made all filings necessary to preserve and protect the rights of Security Trustee and Lender under the Operative Documents;
(iv) There is not pending, or Guarantor shall execute and deliver to Lender a written consent to such transaction and a written confirmation that the Guaranty and its knowledge, threatened against it or, obligations thereunder remain in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementfull force and effect;
(v) Borrower has (A) at least 30 days prior to such consolidation, merger, conveyance, transfer or lease, given written notice of such transaction to Lender and (B) delivered to Lender (x) a certificate signed by a Responsible Officer of Borrower stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (iii) above comply with this Section 7(e) and that all conditions precedent herein provided for relating to such transaction have been complied with and (y) an opinion of counsel (such counsel selected by Borrower and reasonably acceptable to Lender) reasonably satisfactory to Lender that the assumption agreement mentioned in clause (iii) above is, subject to reasonable assumptions, qualifications and exceptions, the duly authorized, valid and binding agreement of the Borrower Successor enforceable against the Borrower Successor in accordance with the terms thereof. Upon any consolidation or merger, or any conveyance, transfer or lease of all or substantially all of the assets of Borrower as an entirety in accordance with the terms set forth in this Section 7(e), the Borrower Successor shall succeed to, and be substituted for, and may exercise every right and power of, Borrower under the Operative Documents to which it is a party with the same effect as if such Borrower Successor had been named as Borrower herein. No such consolidation, merger, conveyance, transfer or lease of all or substantially all of the assets of Borrower as an entirety shall have the effect of releasing Borrower or any successor corporation or Person which shall theretofore have become such in the manner set forth herein from its liability in respect of any Operative Document to which it is a party.
(f) Borrower, at its expense, will take or cause to be taken such action with respect to the recording, filing, re-recording and re-filing of the FAA Xxxx of Sale, the Mortgage, the Mortgage Supplement, and any financing statements or other instruments as are necessary to maintain, so long as the Mortgage is in effect, the perfection of any security interest that may be claimed to have been created by the Mortgage, or to otherwise accomplish the purposes of this Agreement and the other Operative Documents, or will furnish to Lender timely notice of the necessity of such action, together with such instruments, in execution form, and such other information as may be required to enable it to take such action.
(g) Each party (and its respective agents, successors or assigns) to this Agreement as to itself hereby, severally, agrees (as to itself) that it will not, through its own actions or inactions, interfere in Borrower’s quiet enjoyment of the Aircraft unless an Event of Default shall have occurred and be continuing.
(h) Lender hereby agrees that if indemnification is sought pursuant to Section 6(b)(i) hereof with respect to it has occurred U.S. Withholding Taxes, Lender shall consult in good faith with Borrower and shall use its reasonable efforts to avoid or mitigate the imposition of U.S. Withholding Taxes, including, without limitation, by assigning at the direction of Borrower the rights and obligations of Lender to another office, branch, subsidiary or Affiliate of Lender or by restructuring the Notes. Borrower shall be responsible for all actual costs and expenses (including attorneys’ fees) associated with any such mitigation or restructuring unless the imposition of such U.S. Withholding Tax is continuing and no such event or circumstance will occur as a the result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information breach of any kind whatsoever that are not contained representation or obligation of Lender set forth in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementOperative Documents.
(b) On the Effective Date:
(i) Each Party covenants Lender further agrees that if pursuant to the other Party thatOperative Documents the Notes are to be prepaid in whole or in part or otherwise satisfied prior to their Final Maturity Date, the Lender shall provide the Borrower any information reasonably requested by either party for purposes of determining the amount to be paid in connection with such payment.
(j) [intentionally omitted]
(k) Borrower hereby represents and warrants that (i) it has or will timely acquire all regulatory authorizations necessary for it furnished to legally perform its obligations under this Agreement; and
Security Trustee and Lender a true and complete copy of the Purchase Agreement as provided to Borrower upon Borrower’s acquisition of the Aircraft, and (ii) If Borrower shall not enter into any change order or other amendment, modification or supplement of the Warranties without the prior written consent of Lender (which shall not be unreasonably withheld, conditioned or delayed, but which may be withheld if such change order, modification or supplement would result in any rescission, cancellation or termination of the Aircraft Warranties as to the Aircraft or the Engine Warranties as to any Engine, or would otherwise adversely affect Security Trustee’s or Lender’s rights in the Aircraft or any Engine).
(l) Upon the receipt of any notice of illegality or Increased Cost pursuant to Section 1.02(a2.15 of the Mortgage, Lender and Borrower shall consult in good faith and Lender and Borrower shall use its reasonable efforts to avoid the illegality or to avoid or mitigate the amount of any Increased Cost, including, without limitation, by assigning the rights and obligations of Lender hereunder to another office, branch, subsidiary or Affiliate of Lender or by selling or transferring the rights, interests and obligations of Lender hereunder or under any other Operative Document to another bank, financial or lending institution, subject to the terms hereof, that would not be subject to any such illegality or Increased Cost, as the case may be, provided that Lender shall not be required to take any such action to avoid such illegality or to avoid or mitigate such Increased Cost hereunder if such action would result in any economic, legal or regulatory disadvantage, or any adverse Tax consequence to Lender (other than (i) provides that economic disadvantage for which Borrower agrees to indemnify Lender, or (ii) adverse Tax consequences for which Borrower agrees to indemnify Lender on an After-Tax Basis and in a manner reasonably acceptable to Lender).
(m) Lender shall, within seven (7) days of the Generating Facility is Closing Date, deliver to Borrower a an Existing Qualifying Facility, then, Seller represents Internal Revenue Service Form W-9 fully completed and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityexecuted by Lender.
Appears in 1 contract
Samples: Loan Agreement (Skywest Inc)
Representations, Warranties and Covenants. (a) On Buyer and Sellers each represent and warrant, and shall on and as of the Effective DatePurchase Date of any Transaction be deemed to represent and warrant, each Party represents and warrants to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate in any of the terms and conditions in its governing documentsmaterial respect any law, ordinance, charter, by-law or rule applicable to it or any contracts to material agreement by which it is bound or by which any of its assets are affected.
(b) Sellers represent and warrant to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by Sellers to Buyer pursuant to this Agreement are either original documents or genuine and true copies thereof;
(ii) Sellers, Originator and Guarantor are each a party separate and independent corporate entity from the Custodian, none of Sellers, Originator or Guarantor owns a controlling interest in the Custodian either directly or through affiliates and no director or officer of any Applicable Lawsof them is also a director or officer of the Custodian;
(iii) This Agreement constitutes None of the Purchase Price for any Mortgage Loan will be used by Sellers either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and Sellers has not taken any action that might cause any Transaction to violate any regulation of the Federal Reserve Board;
(iv) Each Mortgage Loan was underwritten in accordance with the Underwriting Guidelines and no change to the Underwriting Guidelines has occurred since the date of the last written revision to the Underwriting Guidelines was furnished to Buyer by Sellers;
(v) Each Seller has purchased the Mortgage Loans from Originator pursuant to a legally valid xxxx of sale, a copy of which has been provided to Buyer;
(vi) Each Seller shall be at the time it transfers to Buyer any Mortgage Loans for any Transaction the legal and binding obligation beneficial owner of such Mortgage Loans, free of any lien, security interest, option or encumbrance;
(vii) Each Trade Commitment is enforceable against it again the related Trade Investor in accordance with its terms, subject to any Equitable Defensesthe effect of bankruptcy, insolvency or other laws affecting creditors generally and to equitable principles;
(viii) Sellers used no selection procedures that identified the Mortgage Loans relating to a Transaction as being less desirable or valuable than other comparable assets in each Seller’s portfolio on the related Purchase Date; and
(ix) Each Transaction involving Mortgage Loans is entered into in contemplation of (i) the sale of the Mortgage Loans to a Trade Investor, (ii) liquidation, sale or other disposition, or (iii) the issuance of asset backed securities. The parties intend that, in the case of clause (i) of the preceding sentence, the appropriate portion of the Cash Purchase Price relating to such Mortgage Loans will be paid by the related Trade Investor directly to Buyer; provided, however, that Sellers shall pay Buyer the excess of amounts due to Buyer by Sellers with respect to the related Mortgage Loans over the amount received by Buyer with respect to such Mortgage Loans and if the amount paid by the Trade Investor to Buyer exceeds the amount due Buyer from Sellers with respect to such Mortgage Loans, such excess shall be paid by Buyer to Sellers.
(c) “Sellers each make the representations and warranties set forth in Exhibit C with respect to the Purchased Mortgage Loans included in the related Transactions as of the related Purchase Date and Exhibit E with respect to the Sub prime Mortgage Loans included in the related Transactions as of the related Purchase Date.”
(d) Sellers each make the representations and warranties set forth at Exhibit D with respect to the Mortgage Loans included in all Transactions, as of each Purchase Date.
(e) Sellers each covenant with Buyer, from and after the date hereof, as follows:
(i) Sellers shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Sellers shall deliver to Buyer a current Loan Schedule with respect to all Mortgage Loans subject to this Agreement with such frequency as Buyer may require but in no event less frequently than weekly;
(iii) No Mortgage Loan shall be subject to this Agreement for more than one hundred and eighty (180) days in aggregate;
(iv) There is not pending, or to its knowledge, threatened against it or, in Sellers shall comply with all applicable provisions of the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementCustody Agreement and the Underwriting Guidelines;
(v) No Event Sellers shall promptly notify Buyer of Default (i) the acceleration of any debt obligation or the termination of any credit facility of Sellers, in each case in excess of $10,000,000; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to it has occurred pending or future litigation involving Sellers or Guarantor where the amount in controversy is in excess of $1,000,000 and the case is continuing reasonably likely to be decided against Sellers or Guarantor, as applicable; and no such event (iv) any other developments (other than general economic conditions or circumstance will occur as a result developments affecting the mortgage industry generally that do not disproportionately affect Sellers) which might materially and adversely affect the financial condition of its entering into or performing its obligations under this Agreementany Seller;
(vi) It Each Trade Commitment shall be enforced against the related Trade Investor, subject to the effect of bankruptcy, insolvency or other laws affecting creditors generally and to equitable principles;
(vii) Without Buyer’s express prior written approval, Sellers shall not execute, in favor of any third party other than Buyer, any assignment of rights held or purportedly held by Sellers under a given Trade Commitment;
(viii) Sellers shall cause each Trade Investor to pay the sales proceeds for, or return to the Custodian the documents relating to, each Mortgage Loan delivered to such Trade Investor under a Bailee Letter within ten (10) days of the date of such Bailee Letter;
(ix) With respect to Wet Mortgage Loans subject to this Agreement, Sellers shall deliver the Mortgage Files no later than seven (7) Business Days after the related Purchase Date;
(x) For each Mortgage Loan that is acting a Wet Mortgage Loan, Sellers have obtained an insured closing letter issued by a title insurance company effective not later than the closing date for its own accountsuch Mortgage Loan;
(xi) In the event that Buyer purchases a Mortgage Loan that is a Wet Mortgage Loan and the Wet Mortgage Loan is not originated by Originator for any reason, and its decision Sellers shall return the funds constituting the Purchase Price for such Wet Mortgage Loan via wire transfer within twenty four (24) hours after Sellers’ failure to enter complete the Wet Mortgage Loan;
(xii) For all Mortgage Loans with Mortgages that are recorded into MERs, Sellers agree to take all actions necessary to cause MERs to provide to Buyer all reports that would customarily be provided to an Associate Member;
(xiii) Notwithstanding any provision of this Agreement is based upon its own judgmentor the Custody Agreement to the contrary, not any funds distributed in reliance upon accordance with the advice or recommendations terms hereof and the Custody Agreement for the funding of a Mortgage Loan through the Disbursement Account, shall constitute the Purchase Price for such Mortgage Loan;
(xiv) Sellers agree to cause Guarantor to deliver to Buyer a Compliance Certificate, certifying Guarantor’s compliance with the Financial Covenants as of the other Party and it is capable end of assessing the merits relevant reporting period, within 45 days after the end of and understanding, and understands and accepts each fiscal quarter of Guarantor or within five Business Days after a request by Buyer during the terms, conditions and risks term of this Agreement;
(viixv) It has Sellers shall provide Buyer or its agents, with copies of all filings made by or on behalf of Guarantor or any entity that controls Guarantor, with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, promptly upon making such filings;
(xvi) The aggregate outstanding Purchase Price for all Transactions shall not relied on any promisesexceed $800,000,000, representations(less the aggregate amount owed to Concord Minuteman Capital Company, statements or information of any kind whatsoever that are LLC under the Concord Minuteman Agreement;
(xvii) Subject to the restriction set forth in Section 10(e)(xvi) above, the aggregate outstanding Purchase Price for all Committed Transactions shall not contained in this Agreement in deciding to enter into this Agreementexceed four hundred million dollars ($400,000,000);
(xviii) The aggregate outstanding Purchase Price for all Wet Mortgage Loans shall not exceed one hundred million dollars ($100,000,000); and
(viiixix) It has entered into this Agreement in connection Sellers shall provide Buyer with the conduct written notice of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants any material change that Sellers have made to the other Party thatUnderwriting Guidelines or the Sub prime Underwriting Guidelines, it has or will timely acquire all regulatory authorizations necessary for it as applicable, and Buyer shall have fifteen (15) days to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility determine whether such change is an Existing Qualifying Facility, then, Seller represents and warrants acceptable to Buyer in its reasonable business judgment; if Buyer, in its reasonable business judgment, determines that any such change to the Generating Facility qualifies Underwriting Guidelines or Sub prime Underwriting Guidelines, as an Existing Qualifying Facilityapplicable, is unacceptable to Buyer, then a new Pricing Rate for Mortgage Loans or Sub prime Mortgage Loans, as applicable, originated under such change shall be determined by mutual agreement of Buyer and Sellers or the Mortgage Loans originated under such change shall not be Eligible Loans.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Representations, Warranties and Covenants. (a) On the Effective Date7.1. Each Party represents, each Party represents warrants and warrants covenants to the other Party Parties that:
(i) It is duly organized, validly existing 7.1.1. the execution and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, and the performance of the transactions contemplated hereby have been duly authorized by all necessary action and do not conflict with or violate any laws existing as of the terms date of entry into force of this Agreement and conditions applicable to such Party;
7.1.2. it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
7.1.3. its representative set out in its governing documentsArticle 16 will have full power to execute, deliver, and receive on the Party’s behalf all notices, requests and other communications and that the Parties shall be entitled to act and rely upon any contracts to which it statement, request, notice or agreement made or given by such representative;
7.1.4. this Agreement has been duly executed and is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally legal, valid and binding obligation obligation, enforceable against it in accordance with its terms;
7.1.5. it is not under any obligation, subject contractual or otherwise, to any Equitable Defenses;
(iv) There person or third party that conflicts with or is not pending, or to its knowledge, threatened against it or, inconsistent in any material respect with the case terms of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon or that would impede the advice or recommendations complete fulfilment of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides 7.1.6. it shall comply with all Laws that are applicable to its activities and operations under this Agreement.
7.2. Donor/Xxxxxxxx acknowledges and agrees, and shall procure that the Generating Facility is an Existing Qualifying FacilityRecipient acknowledges and agrees, thenthat Contractor and their Affiliates:
7.2.1. make no representations or warranties of any kind to Recipient with respect to the Shared Doses;
7.2.2. expressly disclaim all warranties, Seller represents express or implied, to Recipient of merchantability and warrants fitness for a particular purpose with respect to Buyer the Shared Doses;
7.2.3. shall have no obligations of any kind or nature, either express or implied, towards Recipient under the EU APAs with respect to the Shared Doses; and
7.2.4. shall have no liability or responsibility, whatsoever, towards Recipient in the event that Donor/Reseller fails to deliver to Recipient any or all of the Generating Facility qualifies as an Existing Qualifying FacilityShared Doses.
Appears in 1 contract
Samples: Donation Agreement
Representations, Warranties and Covenants. of the ------------------------------------------------ Purchaser. ---------
(a) On the Effective Date, each Party The Purchaser represents and warrants to, and covenants with, the Company that: (i) the Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in shares representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Shares; (ii) the Purchaser is acquiring the number of Shares set forth in Section 2 above in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, and no arrangement or understanding exists with any other persons regarding the distribution of such Shares (this representation and warranty not limiting the Purchaser's right to sell pursuant to the Registration Statement or, other Party than with respect to any claims arising out of a breach of this representation and warranty, the Purchaser's right to indemnification under Section 7.3); (iii) the Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act and the Rules and Regulations nor will Purchaser engage in any short sale which results in a disposition of any of the Shares by Purchaser; (iv) the Purchaser has completed or caused to be completed the Registration Statement Questionnaire attached hereto as part of Appendix I, for use in preparation of the Registration Statement, and the answers thereto are true and correct as of the date hereof and will be true and correct as of the effective date of the Registration Statement (provided that Purchaser shall be entitled to update such information prior to the effective date of the Registration Statement); (v) the Purchaser has, in connection with its decision to purchase the number of Shares set forth in Section 2 above, relied solely upon the Private Placement Memorandum and the documents included therein and the representations and warranties of the Company contained herein; and (vi) the Purchaser is an "accredited investor" within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act; and (vii) the Purchaser agrees to notify the Company immediately of any change in any of the foregoing information until such time as the Purchaser has sold all of its Shares or the Company is no longer required to keep the Registration Statement effective.
(b) The Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of Securities Act, the Rules and Regulations and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Shares.
(c) The Purchaser understands that the information contained in the Private Placement Memorandum is strictly confidential and proprietary to the Company and has been prepared from the Company's publicly available documents and other information and is being submitted to the Purchaser solely for such Purchaser's confidential use. The Purchaser agrees to use the information contained in the Private Placement Memorandum for the sole purpose of evaluating a possible investment in the Shares and the Purchaser hereby acknowledges that it is prohibited from reproducing or distributing the Private Placement Memorandum, this Purchase Agreement, or any other offering materials, in whole or in part, or divulging or discussing any of their contents except for use internally and by its legal counsel and except as required by law or legal process. Further, the Purchaser understands that the existence and nature of all conversations and presentations, if any, regarding the Company and this offering must be kept strictly confidential until such time as the Company makes a public announcement of the offering, which will occur no later than two business days following the Closing Date. The Purchaser understands that the federal securities laws impose restrictions on trading based on information regarding this offering. In addition, the Purchaser hereby acknowledges that unauthorized disclosure of information regarding this offering may cause the Company to violate Regulation FD.
(d) The Purchaser understands that its investment in the Shares involves a significant degree of risk and that the market price of the Common Stock has been and continues to be volatile and that no representation is being made as to the future value of the Common Stock. The Purchaser has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and has the ability to bear the economic risks of an investment in the Shares.
(e) The Purchaser understands that no Governmental Authority has passed upon or made any recommendation or endorsement of the Shares.
(f) The Purchaser understands that:, until such time as the Shares may be sold by non-affiliates of the Company pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Shares): "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended. The securities may not be sold, transferred or assigned in the absence of an effective registration statement for the securities under said Act, or an opinion of counsel, in form, substance and scope reasonably acceptable to the Company, that registration is not required under said Act or unless sold pursuant to Rule 144 under said Act."
(g) The Purchaser's principal executive offices are in the jurisdiction set forth immediately below the Purchaser's name on the signature pages hereto.
(h) The Purchaser hereby covenants with the Company not to make any sale of the Shares under the Registration Statement without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Purchaser acknowledges and agrees that such Shares are not transferable on the books of the Company unless the certificate submitted to the transfer agent evidencing the Shares is accompanied by a separate Purchaser's Certificate of Subsequent Sale: (i) in the form of Appendix II hereto, (ii) executed by an officer of, or other authorized person designated by, the Purchaser, and (iii) to the effect that (A) the Shares have been sold in accordance with the Registration Statement, the Securities Act and any applicable state securities or blue sky laws and (B) the requirement of delivering a current prospectus has been satisfied. The Purchaser acknowledges that there may occasionally be times when the Company must suspend the use of the prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the Commission, or such time as such prospectus has been supplemented, or until such time as the Company has filed an appropriate report with the Commission pursuant to the Exchange Act. The Purchaser hereby covenants that it will not sell any Shares pursuant to said prospectus during the period commencing at the time at which the Company gives the Purchaser written notice of the suspension of the use of said prospectus and ending at the time the Company gives the Purchaser written notice that the Purchaser may thereafter effect sales pursuant to said prospectus, provided, however, that the Company will use its reasonable efforts to cause the use of the prospectus so suspended to be promptly resumed.
(i) It is duly organizedThe Purchaser further represents and warrants to, validly existing and in good standing under covenants with, the laws of Company that (i) the jurisdiction of its formation;
(ii) The Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) upon the execution and delivery of this Agreement, and assuming the valid execution thereof by the Company, this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is shall constitute a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to any Equitable Defenses;
general principles of equity (ivregardless of whether such enforceability is considered in a proceeding in equity or at law) There is not pending, or to its knowledge, threatened against it or, in and except as the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations indemnification agreements of the other Party Purchaser in Section 7.3 hereof may be held violative of public policy and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementtherefore legally unenforceable.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Purchase Agreement (Trimeris Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It it is duly organized, validly existing and a “qualified institutional buyer” as defined in good standing Rule 144A under the laws Securities Act of 1933 as amended (the “Securities Act”) or an “accredited investor” as defined in Section 2(a)(15)(ii) of the jurisdiction Securities Act; and
(ii) it is an “eligible contract participant” as defined in the Commodity Exchange Act, as amended (the “CEA”), and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Deutsche as of its formationthe date hereof that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares and “material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer;
(ii) The it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iii) it is entering into this Confirmation and the Transaction in good faith, not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(iv) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act);
(v) Counterparty owns (as such term is used in Rule 16c-4 under the Exchange Act) a number of Shares (including the Shares pledged to Deutsche pursuant to the “Collateral” provision in Section 2 above), after subtracting the number of Shares to which any put equivalent positions (as defined in Rule 16a-1(h) under the Exchange Act) have been established or are maintained by Counterparty (other than any put equivalent position established as a result of the Transaction), at least equal to the aggregate Number of Transaction Options;
(vi) Counterparty is and, after giving effect to the Transaction, will be in compliance with its reporting obligations under Section 16 and Section 13 of the Exchange Act and Counterparty will provide Deutsche with a copy of any report filed thereunder in respect of the Transaction promptly upon filing thereof; and
(vii) Counterparty is not a resident of the United States.
(c) In connection with this Confirmation and the Transaction, Counterparty agrees that:
(i) it shall not enter into or alter any hedging transaction relating to the Shares (x) corresponding to or offsetting the Transaction, at any time or (y) otherwise, prior to the Settlement Date for the Component with the latest Expiration Date;
(ii) it shall, upon (x) the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default, a Potential Event of Default or a Termination Event in respect of which it is an Affected Party or (y) upon obtaining knowledge of any Potential Adjustment Event, an Extraordinary Event or an Additional Disruption Event, notify Deutsche within one Scheduled Trading Day of the occurrence of such event or of obtaining such knowledge, as the case may be; provided, however, that should Counterparty be in possession of material non-public information regarding the Issuer or the Shares, Counterparty shall only communicate such information to Deutsche in connection with this Transaction as follows: By facsimile to: +0 000 000 0000 and By email to: Attention: xxxxxx.xxxxxx@xx.xxx Xxxxxx Xxxxxx
(iii) for the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, it shall deliver the applicable IRS Form W-8 or W-9 (or any successor of such Form), completed accurately, (x) before the Trade Date for the Original Confirmation, (y) promptly upon reasonable demand by Deutsche and (z) promptly upon learning that the information on any such previously delivered Form is inaccurate.
(d) Counterparty represents and warrants to, and covenants with, Deutsche as of the date hereof and any date on which Counterparty makes payment to Deutsche in connection with any settlement hereunder, that it is or will be, as the case may be, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the business in which it engages.
(e) For the avoidance of doubt, and without limiting any representation contained in Section 3(a)(iii) of the Agreement, Counterparty represents that the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action Confirmation and do not violate any of other documentation relating to the terms and conditions in its governing documents, any contracts Confirmation to which it is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, lockup agreement, registration rights agreement, confidentiality agreement, co-sale agreement or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and other agreement binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, on Counterparty or to its knowledge, threatened against it or, in the case of Seller, affecting Counterparty or any of its Related Entitiesassets, and that Counterparty has delivered to Deutsche on or before the Trade Date a true and complete copy of each such agreement.
(f) Counterparty represents and warrants to Deutsche as of the date hereof that the Transaction will not violate any corporate policy of the Issuer (including, but not limited to, any legal proceeding that could materially adversely affect its ability window period policy) or other rules or regulations of the Issuer applicable to perform under this Agreement;Counterparty.
(vg) No Event Each of Default with respect to it has occurred Deutsche and is continuing and no such event Counterparty agrees that notwithstanding anything provided herein or circumstance will occur as a result of its entering into or performing its obligations under this the Agreement;
(vi) It is acting for its own account, and its decision notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to enter into this Agreement is based disclose to any and all persons, beginning immediately upon its own judgmentcommencement of their discussions and without limitation of any kind, not in reliance upon the advice or recommendations tax treatment and tax structure of the other Party and it is capable of assessing the merits of and understandingTransaction, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information all materials of any kind whatsoever (including opinions or other tax analyses) that are not contained in this Agreement in deciding provided by either party to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business other relating to such tax treatment and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementtax structure.
(bh) On The parties intend for the Effective Date:Original Confirmation, as amended and restated hereby, to constitute a “binding commitment” as described in the letter dated December 14, 1999 submitted by Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx to Xxxxxxx Xxxxxx of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretative letter dated December 20, 1999 or a “contract” as described in the letter dated November 30, 2011 submitted by Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxx to Xxxxxx Xxx of the Staff to which the Staff responded in an interpretive letter dated December 1, 2011.
(i) Each Party covenants Deutsche confirms that an affiliate of Deutsche that is registered as a broker and a dealer with the Securities and Exchange Commission and is a “market maker” or a “block positioner,” as such terms are used in Rule 144, with respect to the other Party thatShares has, it has or will timely acquire all regulatory authorizations necessary for it as promptly as practicable consistent with market conditions, introduced into the public market a quantity of securities of the same class as the shares equal to legally perform its obligations under this Agreement; andthe Number of Transaction Options.
(iij) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller Counterparty represents and warrants to, and covenants with, Deutsche that, Counterparty shall file or cause to Buyer be filed, on the date hereof and in the manner contemplated by Rule 144(h) under the Securities Act, a notice on Form 144 relating to the Transaction contemplated hereby in form and substance that the Generating Facility qualifies as an Existing Qualifying Facilityacceptable to Deutsche.
Appears in 1 contract
Samples: Call Option Transaction (DDR Corp)
Representations, Warranties and Covenants. The following representations, warranties and covenants are in addition to those made elsewhere in this Agreement.
(a) On the Effective DateEach party hereto hereby represents, each Party represents warrants and warrants covenants, as applicable, to the other Party party that:
(i) It it is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction of its formationin which it was organized;
(ii) The execution, delivery it will comply with all laws and performance rules and regulations of governmental authorities and regulatory agencies applicable to it by virtue of entering into and performing this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable LawsAgreement;
(iii) This its execution, performance and delivery of this 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 person executing this Agreement on its behalf is duly authorized and empowered to execute and deliver this Agreement; and, assuming due and valid execution and delivery by the other party, this Agreement constitutes a legally its legal, valid and binding obligation obligation, enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;; and
(v) No Event of Default with no consent or authorization of, filing with, or other act by or in respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement governmental authority is required in connection with the conduct execution, delivery, performance, validity or enforceability of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective DateDistributor hereby represents and warrants to Intermediary that:
(i) Each Party covenants it is duly registered as a broker-dealer pursuant to the other Party thatSecurities Exchange Act of 1934, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementas amended (the “Exchange Act”); and
(ii) If Section 1.02(a) provides that the Generating Facility Fund is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies registered as an Existing Qualifying Facilityinvestment 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 and XXX, 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, 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 Title I of ERISA, Section 4975 of the Internal Revenue Code of 1986, as 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, 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 prohibition under applicable law;
(vii) Intermediary has full authority to act on behalf of Clients in the manner contemplated by this Agreement, and 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 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 agreements, representations, warranties, covenants or agreements of Intermediary herein (“Compliance Matters”), (B) provide Distributor with such certifications and representations regarding Compliance Matters and (C) permit Distributor or the Fund or its agent, as well as appropriate regulatory authorities, to obtain information and records, and 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 effectiveness of such changes;
(x) Intermediary will impose any applicable redemption fee on Shares as described in the Prospectuses;
(xi) Intermediary will not withhold placing orders received from Clients so as to profit as a result of 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 market timing or excessive trading strategies, and Intermediary has implemented reasonable procedures to monitor 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 1 contract
Samples: Financial Intermediary Agreement (Lazard Funds Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, Buyer and Seller each Party represents and warrants warrants, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any of the terms and conditions in its governing documentslaw, ordinance, charter, by-law or rule applicable to it or any contracts to agreement by which it is bound or by which any of its assets are affected.
(b) Seller represents and warrants to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by Seller to Buyer pursuant to this Agreement are either original documents or genuine and true copies thereof;
(ii) Seller is a party separate and independent corporate entity from the Custodian, Seller does not own a controlling interest in the Custodian either directly or any Applicable Lawsthrough affiliates and no director or officer of Seller is also a director or officer of the Custodian;
(iii) This Agreement constitutes a legally valid None of the Purchase Price for any Mortgage Loan will be used either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and binding obligation enforceable against it in accordance with its terms, subject Seller has not taken any action that might cause any Transaction to violate any Equitable Defensesregulation of the Federal Reserve Board;
(iv) There Seller is not pending, or to its knowledge, threatened against it or, in the case a wholly owned subsidiary of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementGuarantor;
(v) No Event Seller shall be at the time it transfers to Buyer any Mortgage Loans for any Transaction the legal and beneficial owner of Default with respect to it has occurred and is continuing and no such event Mortgage Loans, free of any lien, security interest, option or circumstance will occur as a result of its entering into or performing its obligations under this Agreementencumbrance;
(vi) It is acting for its own account, and its decision Seller used no selection procedures that identified the Mortgage Loans relating to enter into this Agreement is based upon its own judgment, not a Transaction as being less desirable or valuable than other comparable assets in reliance upon Seller’s portfolio on the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreementrelated Purchase Date;
(vii) It has not relied on Within thirty (30) days following the issuance of applicable regulations pursuant to the USA Patriot Act of 2001, or any promisessimilar federal, representationsstate or local anti-money laundering laws and regulations (collectively, statements the “Anti-Money Laundering Laws”), Seller shall have implemented and shall thereafter maintain a compliance program that meets the requirements of such Anti-Money Laundering Laws;
(viii) There is no pending or information of threatened action, suit or proceeding before any kind whatsoever that are not contained in court or governmental agency, authority or body or any arbitrator involving Seller or relating to the transaction contemplated by this Agreement in deciding to enter into this Agreementor the Custodial Agreement which, if adversely determined, would have a material adverse effect on Buyer; and
(viiiix) It The Guarantee has entered into this Agreement been duly authorized, executed and delivered by Guarantor and is in connection with the conduct of its business full force and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementeffect.
(bc) On Seller makes the Effective Daterepresentations and warranties with respect to the Mortgage Loans for each Transaction as are attached to the related Request/Confirmation.
(d) Seller covenants with Buyer, from and after the date hereof, as follows:
(i) Each Party covenants Seller shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Seller shall deliver to Buyer a current Loan Schedule with respect to all Mortgage Loans subject to this Agreement with such frequency as Buyer may require but in no event less frequently than weekly;
(iii) No Mortgage Loan shall be subject to this Agreement for more than one hundred and eighty (180) days in aggregate;
(iv) No more than five (5) percent of the other Party that, it has or will timely acquire all regulatory authorizations necessary for it Mortgage Loans at any time subject to legally perform its obligations under this AgreementAgreement shall have FICO Scores of less than 660; and
(iiv) If Section 1.02(a) provides Seller will not directly or indirectly use any of the proceeds from the sale of the Mortgage Loans, or lend, contribute or otherwise make available any such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person or entity that is subject to sanctions under any program administered by the Generating Facility is an Existing Qualifying FacilityOffice of Foreign Assets Control of the United States Department of the Treasury, thenincluding without limitation those implemented by regulations codified in Subtitle B, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityChapter V, of Title 31, Code of Federal Regulations.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On In connection with the Effective Exchange, the Holder hereby represents, warrants, acknowledges and agrees as follows as of the date of this agreement and the Closing Date, each Party represents and warrants to the other Party that:
(i) It The Holder is duly organized, validly existing the sole legal and in good standing under the laws beneficial owner of the jurisdiction of its formation;Note.
(ii) The executionNote being transferred hereunder is free and clear of any liens, delivery charges or encumbrances and performance at the Closing, the Holder shall convey to the Company good title to the Note free and clear of this Agreement are within its powersall liens, have been duly authorized by all necessary action charges and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;encumbrances.
(iii) This Agreement constitutes Neither the Holder nor anyone acting on the Holder’s behalf has received or paid or will receive or pay any commission or remuneration directly or indirectly in connection with or in order to solicit or facilitate the Exchange, and neither such Holder nor anyone acting on the Holder’s behalf has paid or will pay any consideration in connection with the Exchange, except solely for the Note being exchanged.
(iv) The Holder acknowledges that the transaction contemplated hereby is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”). The Holder knows of no reason why such exemption is not available.
(v) The Holder is (A) an accredited investor within the meaning of Regulation D promulgated under the Securities Act; (B) a legally valid qualified institutional buyer within the meaning of Rule 144A promulgated under the Securities Act.
(vi) The Holder has sufficient experience in business, financial and binding investment matters to be able to evaluate the risks involved in, and to make an informed investment decision with respect to, the Exchange, and the Holder acknowledges that: (A) the Company makes no representation regarding the value of the Note or the Shares; and (B) the Holder has independently and without reliance upon the Company made its own analysis and decision to enter into the Exchange and exchanges the Note on the terms set forth herein.
(vii) The Holder has had such opportunity as it has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Holder to evaluate the merits and risks of the transaction contemplated, and the Holder has undertaken an independent evaluation of such merits and risks based on the Holder’s own financial circumstances.
(viii) The Holder represents that: (A) it has all of the power and authority necessary to enter into this agreement and to consummate the transactions contemplated hereunder; (B) it has taken all action as may be necessary to authorize the execution and delivery of this agreement and the consummation of the transactions contemplated by this agreement and the performance of its obligations hereunder; (C) this agreement is an obligation enforceable against it the Holder in accordance with its terms, except that such enforcement may be subject to (x) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally; and (y) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity; and (D) neither the execution and delivery hereof or the performance of its obligations hereunder will violate or contravene any Equitable Defenses;
(iv) There is not pending, applicable requirements of law or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;governing documents.
(vix) No Event The Holder acknowledges and agrees that (A) as of the date hereof, the Company is in full compliance with and is not in Default (as such term is defined in the convertible note purchase agreement dated August 24, 2011 (“NPA”)) under the NPA or the Note, and (B) neither this agreement nor the Exchange is or will constitute a breach of the NPA or Default under the NPA or the Note in any respect. For the avoidance of doubt, (1) the Company hereby expressly waives the applicability of Section 6.2.2 of the NPA and Section 4.3 (except for the last sentence of thereof) of the NPA to this agreement and to the Exchange, and (2) the Holder hereby expressly acknowledges that the Shares shall not constitute Registrable Securities (as such term is defined in the registration rights agreement dated August 30, 2011 (“RRA”)) under the RRA and that the Company shall have no obligations pursuant to the RRA with respect to it has occurred to, and is continuing and the RRA shall have no such event applicable to, the Shares or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;the Exchange.
(vix) It is acting for Unless otherwise required by law or applicable regulation or if otherwise publicly disclosed by the Company (but in which case only to the extent of such disclosure by the Company), the Holder shall keep the terms of this agreement confidential and shall not disclose such terms to any other party.
(xi) The Holder understands and acknowledges that (A) as the issuer of the Shares, the Company has information that has not been publicly disclosed concerning the Company, its own accountsubsidiaries and affiliates, including, but not limited to, the general business, plans and prospects of and possible future transactions involving the Company, its subsidiaries and/or affiliates (the “Information”), and (B) such Information may be indicative of or affect the value of the Note or the Shares. The Holder has not requested and does not wish to be provided with any Information, has not received any Information and acknowledges that the Information might be material to its decision to enter into the Exchange or otherwise materially adverse to its interests. The parties hereby acknowledge and agree that this Agreement agreement is based upon its own judgmentbeing entered and the transactions contemplated hereby, not in reliance upon including the advice or recommendations Exchange, are being effected solely because of the other Party representations and it is capable of assessing covenants made by the merits of and understandingHolder in this Section 2(a)(xi), and understands and accepts that the terms, conditions and risks of this Agreement;
(vii) It has Company would not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has have entered into this Agreement agreement or agreed to effect the Exchange in connection the absence of such representations and covenants.
(xii) The Holder, directly or indirectly, has not entered, and shall not, prior to July 16, 2016, enter into any “short sale” involving the Common Stock. For purposes of this agreement, “short sale” means any sale of Common Stock that the Holder does not own or any sale that is consummated by the delivery of Common Stock borrowed by, or for the account of, the Holder.
(xiii) The Holder is not acting and has not agreed to act together with any other person for the conduct purpose of its business effecting the Exchange or acquiring, holding, voting or disposing of the Shares. The Holder is not an “affiliate” of the Company, as such term is defined in Rule 144 promulgated under the Securities Act, and it has not been an affiliate of the capacity or ability to provide or receive Company for at least the Power Product as three preceding months. Immediately after the consummation of the transactions contemplated by this Agreementherein, the Holder will not beneficially own more than 9.99% of the Company’s issued and outstanding Common Stock.
(b) On In connection with the Effective Exchange, the Company represents, warrants, acknowledges and agrees as follows as of the date of this agreement and the Closing Date:
(i) Each Party covenants to Assuming the other Party thataccuracy of the Holder’s representations and warranties made herein, it has or the Shares will timely acquire all regulatory authorizations necessary for it to legally perform its obligations not be “restricted securities” within the meaning of the Securities Act, will be validly issued, fully paid and non-assessable and will be freely transferable by the Holder. The book-entry positions representing the Shares will not bear a restrictive legend under this Agreement; andthe Securities Act.
(ii) If The transaction contemplated hereby is exempt from registration by virtue of Section 1.02(a3(a)(9) provides that of the Generating Facility Securities Act. The Company knows of no reason why such exemption is not available.
(iii) The Company represents that: (A) it has all of the power and authority necessary to enter into this agreement and to consummate the transactions contemplated hereunder; (B) it has taken all action as may be necessary to authorize the execution and delivery of this agreement and the consummation of the transactions contemplated by this agreement and the performance of its obligations hereunder; (C) this agreement is an Existing Qualifying Facilityobligation enforceable in accordance with its terms, thenexcept that such enforcement may be subject to: (x) bankruptcy, Seller represents insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally; and warrants (y) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity; and (D) neither the execution and delivery hereof or the performance of its obligations hereunder will violate or contravene any applicable requirements of law or any of its governing documents.
(iv) The Company shall not, from the date hereof through and including August 14, 2016, sell any shares of Common Stock pursuant to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityits equity distribution agreement with Citigroup Global Markets Inc. dated November 11, 2015.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 2.01 Dxxx represents and warrants to the other Party Hadro that:
(ia) It it is a company duly organizedincorporated, organized and validly existing and in good standing under the laws of the jurisdiction of its formationincorporating jurisdiction;
(iib) The execution, it has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the Project is presently owned by Dxxx as to four percent (4%);
(d) neither the execution and delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate nor any of the terms and conditions agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated, conflict with, will result in its governing documentsthe breach of, or accelerate the performance required by, any contracts agreement to which it is a party party; and
(e) the execution and delivery of this Agreement and the agreements contemplated hereby will not violate or result in the breach of the laws of any Applicable Lawsjurisdiction applicable or pertaining thereto or of its constating documents.
2.02 Hadro represents and warrants to Dxxx that:
(a) it is a company duly incorporated, organized and validly existing under the laws of its incorporating jurisdiction;
(iiib) This it has full power and authority to carry on its business and to enter into this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject any agreement or instrument referred to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under contemplated by this Agreement;
(vc) No Event neither the execution and delivery of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations nor any of the other Party and agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated conflict with, will result in the breach of, or accelerate the performance required by, any agreement to which it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementa party; and
(viiid) It has entered the execution and delivery of this Agreement and the agreements contemplated hereby will not violate or result in the breach of the laws of any jurisdiction applicable or pertaining thereto or of its constating documents.
2.03 The representations, warranties and covenants herein- before set out are conditions on which the parties have relied in entering into this Agreement and shall survive the acquisition of any Interest in the Project by Hadro and any loss, damage, cause of action and suits arising out of or in connection with the conduct any breach of its business any representation warranty, covenant, agreement or condition made by them and it has the capacity or ability to provide or receive the Power Product as contemplated by contained in this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 3.01 Seller hereby represents and warrants to the other Party thatPurchasers as follows:
(i) It Seller is a duly organized, formed and validly existing limited partnership organized and in good standing under the laws of the jurisdiction State of its formation;
New York, and (ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and Seller Documents (as defined in Section 5.01) do not violate and will not contravene any provision of the terms and conditions in its governing documents, any contracts limited partnership agreement to which it Seller is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementbound.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it Seller has or will timely acquire all regulatory authorizations necessary for it shall have by the Closing Date the full legal right, power and authority to legally execute and deliver this Agreement and Seller Documents to consummate the transaction contemplated hereby and to perform its obligations hereunder and under this Agreement; andSeller Documents.
(iic) If Section 1.02(aThis Agreement and Seller Documents do not and will not contravene any judgment, order, decree, writ or injunction issued against Seller, or materially violate a material provision of any law or governmental ordinance, rule, regulation, order or requirement (collectively, "Laws") provides to which Seller is or will be subject, except such violations as would not have a material adverse effect on any of the transactions contemplated hereby if finally determined adversely to such party. The consummation of the transactions contemplated hereby will not result in a breach or constitute a default or event of default by Seller, under any agreement to which any of them or any of their assets are or will be subject or bound and will not result in a violation of any Laws to which Seller is or will be subject, except such violations as would not have a material adverse effect on the transaction contemplated hereby if finally determined adversely to the Seller.
(d) Seller owns the Interest free and clear of any and all liens and encumbrances.
(e) At the Closing, upon Seller's delivery of an assignment of the Interest in substantially the form set forth on Exhibit B (the "Assignment") and all of the other Seller Documents, good and valid title to the Interest will pass to Purchasers.
(f) There are no statutory or contractual preemptive rights, rights of refusal or options with respect to the transfer and/or assignment of any portion of the Interest.
(g) No representation or warranty by Seller in this Agreement and no statement contained herein or in any document, certificate, or other writing furnished or to be furnished by Seller to Purchasers pursuant to the provisions hereof or in connection with the transactions contemplated hereby contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary in order to make the statements herein or therein not misleading. Seller has disclosed to Purchasers all facts known or reasonably available to Seller that are material to the Generating Facility is an Existing Qualifying Facility, then, Seller transactions contemplated herein.
3.02 Each Purchaser hereby represents and warrants to Buyer Seller follows:
(a) Such Purchaser has the full legal right, power and authority to execute and deliver this Agreement and Purchasers' Documents to consummate the transactions contemplated hereby, and to perform his obligations hereunder and under Purchasers' Documents.
(b) This Agreement and Purchasers' Documents do not and will not contravene any judgment, order, decree, writ or injunction issued against such Purchaser, or materially violate a material provision of any Laws to which such Purchaser is or will be subject, except such violations as would not have a material adverse effect on any of the transactions contemplated hereby if finally determined adversely to such Purchaser. Such Purchaser hereby represents and warrants that the Generating Facility qualifies consummation of the transactions contemplated hereby will not result in a breach or constitute a default or event of default by such Purchaser under any agreement to which such Purchaser or any of his/its assets is subject or bound and will not result in a violation of any Laws applicable to such Purchaser, except such violations as an Existing Qualifying Facilitywould not have a material adverse effect on the transactions contemplated hereby if finally determined adversely to such Purchaser.
(c) No representation or warranty by such Purchaser in this Agreement and no statement contained herein or in any document, certificate, or other writing furnished or to be furnished by such Purchaser to Seller pursuant to the provisions hereof or in connection with the transactions contemplated hereby contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary in order to make the statements herein or therein not misleading. Such Purchaser has disclosed to Seller all facts known or reasonably available to such Purchaser that are material to the transaction contemplated herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Philips International Realty Corp)
Representations, Warranties and Covenants. (a) On the Effective DateThe Trust represents, each Party represents warrants and warrants to the other Party covenants that:
(i) It i. it is duly organized, validly existing and in good standing under the laws of the jurisdiction state of its formation, and has all requisite power under the laws of such state and applicable federal law to conduct its business as now being conducted and to perform its obligations as contemplated by this Agreement;
(ii) The execution, delivery and performance of . this Agreement are within its powers, have has been duly authorized by all necessary action and do not violate any the Board of Trustees of the terms Trust, including by unanimous affirmative vote of all of the Qualified Trustees and, when executed and conditions in its governing documentsdelivered by the Trust, any contracts to which it is will constitute a party or any Applicable Laws;
(iii) This Agreement constitutes a legally legal, valid and binding obligation of the Trust, enforceable against it the Trust in accordance with its terms, subject to any Equitable Defenses;
(iii. it shall, in good faith, timely perform all obligations identified in this Agreement as obligations of the Trust, including, without limitation, providing the Distributor with all marketing materials reasonably requested by the Distributor;
iv) There . it is not pendinga party to any, and there are no, pending or threatened legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations or inquiries (collectively, “Actions”) of any nature against it or its properties or assets which could, individually or in the aggregate, have a material effect upon its business or financial condition, and there is no injunction, order, judgment, decree, or to its knowledge, threatened against regulatory restriction imposed upon it or, in the case of Seller, or any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementproperties or assets;
(v) No Event v. it is an investment company that is duly registered under all applicable laws and regulations, including, without limitation the 1940 Act, and each Fund is a separate series of Default with respect to the Trust;
vi. it has occurred policies and is continuing procedures in place that are reasonably designed to comply with applicable anti-money laundering laws and no such event or circumstance will occur as a result regulations, including applicable provisions of its entering into or performing its obligations under this Agreementthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the rules promulgated by the SEC;
vii. each Prospectus has been prepared in accordance with all applicable laws and regulations and, at the time such Prospectus was filed with the SEC and became effective, no Prospectus will include an untrue statement of a material fact or omit to state a material fact that is required to be stated therein or necessary in order to make the statements contained in such Prospectus (vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations light of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(viicircumstances under which they were made) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained misleading. As used in this Agreement in deciding Article, the term, “Prospectus” means any prospectus, statement of additional information, proxy solicitation and tender offer materials, or shareholder reports generated by the Trust from time to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity time, as appropriate, including all amendments or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.supplements thereto;
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Each Party represents and warrants to the other Party that:
(i) It is duly organizedParty, validly existing and in good standing under the laws as of the jurisdiction date of this Agreement and as of the date on which any AAUs and/or Proceeds are due to be transferred pursuant to this Agreement that: it has the power and authority to execute and deliver this Agreement, including the power and authority to hold, transfer, sell and purchase (as the case may be) AAUs, to enter into and implement a green investment scheme as well as any other agreements necessary in connection therewith, and to perform its formation;
(ii) The execution, delivery obligations hereunder; this Agreement and performance the obligations arising out of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against for it; all of the information provided by it to the other Party is true and correct and may be relied upon by the other Party; all Consents necessary for the performance of its obligations under this Agreement have been obtained and are in accordance with its termsfull force and effect; there are no claims, subject to any Equitable Defenses;
(iv) There is not pendingactions, suits, proceedings or investigations pending or, to its knowledge, threatened against or relating to it oror the Contract AAUs [or the Option AAUs] before any court, in the case of Selleradministrative body, any of its Related Entities, any legal proceeding that could arbitral tribunal or otherwise which might materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing meet and/or carry out its obligations under this Agreement;
(vi) It is acting for its own account. Seller represents and warrants, and its decision to enter into as of the date of this Agreement is based upon its own judgmentand as of each date on which any AAUs and/or Proceeds are due to be transferred pursuant to this Agreement that: this Agreement, not in reliance upon the advice or recommendations execution and delivery of this Agreement and the other Party fulfilment and it is capable of assessing compliance with the merits of and understanding, and understands and accepts the terms, conditions and risks terms of this Agreement;
(vii) It has , including the implementation of the Greening Plan, by it will not relied on any promisesconflict with, representations, statements or information require the consent of any kind whatsoever that are person under, any of its national laws, rules or guidelines, or other agreement to which Seller is a party, which have not contained in been obtained; it will have, upon their issuance and immediately prior to the AAUs being due to be transferred pursuant to this Agreement in deciding Agreement, full legal title to enter into all of the Contract AAUs [and Option AAUs] to perform this Agreement; and
(viii) It the relevant transfer of AAUs does not lead to a breach of its commitment period reserve obligations under the International Rules; it has entered into this Agreement made all necessary budgetary and institutional arrangements for the Greening Activities to be implemented, in connection accordance with the conduct Greening Plan; all Consents necessary for the implementation and operation of its business the Greening Activities have been obtained and are in full force and effect; it has not directly or indirectly transferred, issued, sold, delivered, assigned, novated, licensed, disposed of, granted or otherwise created any interest in the capacity Contract AAUs [and Option AAUs] to any Third Party; the Greening Activities (including the Greening Effect thereof) are additional to any greening activities already present, planned, budgeted or ability to provide or receive otherwise anticipated in the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) country of Seller. Each Party covenants to the other Party thatthat it shall: use its best efforts to ensure that it [will meet and] shall continue to meet the Eligibility Requirements and that in the event that a question on implementation regarding its compliance with the Eligibility Requirements is raised by the enforcement branch of the Compliance Committee, it has or will timely acquire all regulatory authorizations necessary for it shall within [**] ([**]) calendar days of receiving a notification from the Compliance Committee notify the other Party thereof and of its intended response to legally the Compliance Committee; duly perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides not enact any laws or regulations that contradict or run counter to this Agreement, including the Generating Facility is an Existing Qualifying Facility, then, Greening Plan; not attempt to request the repayment of Proceeds that have been allocated to a Third Party [and/or [International Greening Agent][National Greening Agent]] in good faith and in accordance with the Greening Plan for the purpose of such Third Party [and/or [International Greening Agent][National Greening Agent]] implementing the Greening Activities. Seller represents and warrants covenants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityGreening Activities [including Tenders] shall take place in accordance with applicable state aid and public procurement rules.4 [Buyer covenants to Seller that if any part of the Proceeds is repaid to Buyer under this Agreement because the Greening Activities are not implemented in accordance with the Greening Plan or a Greening Milestone is not achieved at the relevant date, then Buyer shall allocate such repaid amount(s) exclusively to alternative greening activities.]
Appears in 1 contract
Samples: Model Agreement for the Sale and Purchase of Assigned Amount Units Under a Green Investment Scheme
Representations, Warranties and Covenants. In addition to the other representations, warranties and covenants of Broker set forth in this Agreement, Broker represents, warrants and covenants that at all times during the term of this Agreement, including but not limited to each date that Broker delivers a Loan Package to Lender and on the closing date of each Mortgage Loan: (a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It Broker is duly organizedqualified, validly existing licensed and in good standing under approved to transact business and to conduct the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of activities contemplated by this Agreement are within its powersin all states and territories in which such qualification, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documentslicensure or approval is required, any contracts to which it is a party or any Applicable Laws;
(iiib) This this Agreement constitutes a legally valid legal, valid, binding and binding enforceable obligation enforceable against it in accordance with its termsof Broker, subject to any Equitable Defenses;
(ivc) There there is not pendingno pending or threatened litigation, adverse claim or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information action of any kind whatsoever or nature that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or if decided against Broker would have a material adverse affect on Broker’s ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
, (d) no party other than Broker or an employee of Broker performed any services in connection with the origination or processing of the Loan Package, (e) the information contained in the Loan Package is true, accurate and complete, and Broker has not omitted any material fact, (f) there is no circumstance or condition with respect to the applicant, his or her credit standing, the Loan Package or the underlying property that reasonably can be expected (i) to cause the existing or intended insurer or guarantor of the Mortgage Loan to regard the loan as not eligible for insurance or guaranty, (ii) If Section 1.02(a) provides that to cause Xxxxxx Xxx, Freddie Mac or a private investor to regard the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies Mortgage Loan as an Existing Qualifying Facility.unacceptable investment or not eligible for resale, (iii) to cause the Mortgage Loan to become delinquent or (iv) to adversely affect the value or marketability of the Mortgage Loan,
Appears in 1 contract
Samples: Mortgage Broker Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 2.1 The Company represents and warrants to Avaron that, as of the other Party thatdate of this Agreement:
(ia) It it is a valid and subsisting corporation duly organized, validly existing and in good standing incorporated under the laws of the its jurisdiction of incorporation and has full corporate power and authority to execute and deliver this Agreement and to observe and perform its formation;
(ii) The executioncovenants and obligations hereunder and has taken all necessary corporate proceedings and obtained all necessary approvals in respect thereof and, upon execution and delivery and performance of this Agreement are within its powersby it, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documentsthis Agreement will constitute a legal, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation of the Company enforceable against it in accordance with its termsterms except that:
(i) enforceability may be limited by bankruptcy, subject to any Equitable Defensesinsolvency or other laws affecting creditors’ rights generally;
(ii) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court;
(iii) a court may stay proceedings before them by virtue of equitable or statutory powers; and
(iv) There rights of indemnity and contribution hereunder may be limited under applicable law;
(b) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby conflict with, result in a breach of or accelerate the performance required by any agreement to which it is not pendinga party;
(c) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby, result in a breach of the laws of any applicable jurisdiction or its constating documents;
(d) it is the legal, beneficial and registered owner of the Property and no person has any right or interest to acquire the Property;
(e) Schedule A attached hereto accurately sets out all of its interests in the mining leases comprising the Property;
(f) all of the mining leases constituting the Property have been duly and properly surveyed and have been and are validly held in accordance with applicable laws and regulations;
(g) it has the legal capacity to hold mining leases in Yukon Territory;
(h) Avaron has been provided with true and complete copies of all agreements material to the Property, and there are no existing defaults by the Company, or, to its knowledge, the other parties to such agreements;
(i) it is the legal, beneficial and registered owner of a 100% undivided interest in the Property free and clear of all Encumbrances and has the right to grant an interest in the Property;
(j) subject to applicable laws, it has the exclusive right to conduct mineral exploration on the Property as contemplated by this Agreement;
(k) there has been no act or omission by it, or to its knowledge by anyone else, that could result by notice or lapse of time, or both, in the breach, termination, abandonment, forfeiture, relinquishment or other premature termination of the Property or any of its rights with respect thereto;
(l) the Property is in good standing and no proceedings have been instituted to invalidate or assert an adverse claim or challenge against or to the ownership of or title to the Property, nor is there any basis therefor, and no other person is entitled to an agreement or option to acquire or purchase the Property or any portion thereof, and no person has any royalty or other interest whatsoever, in production from any part of the Property;
(m) the Property has full and free legal access and there is no fact or condition which would result in the interference with or termination of such access;
(n) there are no actions, suits or proceedings pending or to its knowledge, threatened threatened, against it or, in the case of Seller, any of its Related Entities, any legal proceeding that or adversely affecting or which could materially adversely affect its ability to perform under this Agreementthe Property before any federal, provincial, territorial, municipal or other governmental authority, court, department, commission, board bureau, agency or instrumentality, domestic or foreign, whether or not insured, and which might involve the possibility of any judgment or liability against the Property;
(vo) No Event all work carried out on the Property has been carried out in compliance with all applicable laws, including Environmental Laws, and neither the Company, nor to its knowledge any person, has received any notice of Default with respect to any breach of any such law and it has occurred no knowledge of any facts which would lead a well informed operator in the mining industry to believe there are any environmental liabilities associated with the Property and is continuing and there are no such event environmental audits, evaluations, assessments or circumstance will occur as a result of its entering into or performing its obligations under this Agreementstudies relating to the Property;
(vip) It is acting for its own account, and its decision it has made full disclosure to enter into this Agreement is based Avaron of all relevant information that it possesses which relates to the Property which could have any effect upon its own judgment, not in reliance upon the advice or recommendations of the other Party and Avaron determining whether it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to shall enter into this Agreement; and
(viiiq) It has entered into no consent or approval is required to permit the execution and delivery of this Agreement in connection with by the conduct Company or the performance of its business obligations hereunder.
2.2 Avaron represents and it has warrants to the capacity or ability to provide or receive Company that as of the Power Product as contemplated by date of this Agreement.:
(ba) On it is a valid and subsisting corporation duly incorporated under the Effective Datelaws of its jurisdiction of incorporation and has full corporate power and authority to execute and deliver this Agreement and to observe and perform its covenants and obligations hereunder and has taken all necessary corporate proceedings and obtained all necessary approvals in respect thereof and, upon execution and delivery of this Agreement by it, this Agreement will constitute a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms except that:
(i) Each Party covenants to enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally;
(ii) equitable remedies, including the other Party thatremedies of specific performance and injunctive relief, it has are available only in the discretion of the applicable court;
(iii) a court may stay proceedings before them by virtue of equitable or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementstatutory powers; and
(iiiv) If Section 1.02(arights of indemnity and contribution hereunder may be limited under applicable law;
(b) provides that neither the Generating Facility execution of this Agreement nor the consummation of the transactions contemplated hereby conflict with, result in a breach of or accelerate the performance required by any agreement to which it is an Existing Qualifying Facilitya party;
(c) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby, thenresult in a breach of the laws of any applicable jurisdiction or its constating documents.
2.3 As soon as reasonably practicable following the Execution Date, Seller represents the Company shall file notice of this Agreement and warrants to Buyer that the Generating Facility qualifies transaction contemplated herein with the Exchange as an Existing Qualifying Facility“Exempt Disposition”, as that term is defined under the policies of the Exchange. If requested by the Company, Avaron shall assist the Company with providing any additional information or documentation concerning Avaron as may be reasonably required by the Exchange.
2.4 The representations, warranties and covenants hereinbefore set out are conditions on which the Parties have relied in entering into this Agreement and each of the Parties will indemnify and save the other harmless from all loss, damage, costs, actions and suits arising out of or in connection with any breach of any representation, warranty, covenant, agreement or condition made by it and contained in this Agreement. The representations and warranties set out herein shall survive for a period of five years following the Execution Date.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, Buyer and Seller each Party represents and warrants warrants, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any of the terms and conditions in its governing documentslaw, ordinance, charter, by-law or rule applicable to it or any contracts to agreement by which it is bound or by which any of its assets are affected.
(b) Seller represents and warrants to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by Seller to Buyer pursuant to this Agreement are either original documents or genuine and true copies thereof;
(ii) Seller is a party separate and independent corporate entity from the Custodian, Seller does not own a controlling interest in the Custodian either directly or any Applicable Lawsthrough affiliates and no director or officer of Seller is also a director or officer of the Custodian;
(iii) This Agreement constitutes a legally valid None of the Purchase Price for any Mortgage Loan will be used either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and binding obligation enforceable against it in accordance with its terms, subject Seller has not taken any action that might cause any Transaction to violate any Equitable Defensesregulation of the Federal Reserve Board;
(iv) There is not pending, Each Mortgage Loan was purchased by Seller directly from Buyer or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementaffiliate;
(v) No Event Seller shall be at the time it transfers to Buyer any Mortgage Loans for any Transaction the legal and beneficial owner of Default with respect to it has occurred and is continuing and no such event Mortgage Loans, free of any lien, security interest, option or circumstance will occur as a result of its entering into or performing its obligations under this Agreementencumbrance;
(vi) It is acting for its own account, and its decision Seller used no selection procedures that identified the Mortgage Loans relating to enter into this Agreement is based upon its own judgment, not a Transaction as being less desirable or valuable than other comparable assets in reliance upon Seller’s portfolio on the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreementrelated Purchase Date;
(vii) It has not relied on Within thirty (30) days following the issuance of applicable regulations pursuant to the USA Patriot Act of 2001, or any promisessimilar federal, representationsstate or local anti-money laundering laws and regulations (collectively, statements or information the “Anti-Money Laundering Laws”), Seller shall have implemented and shall thereafter maintain a compliance program that meets the requirements of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementsuch Anti-Money Laundering Laws; and
(viii) It has entered into this Agreement in connection with There is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving Seller or relating to the conduct of its business and it has the capacity or ability to provide or receive the Power Product as transaction contemplated by this AgreementAgreement or the Custodial Agreement which, if adversely determined, would have a material adverse effect on Buyer.
(bc) On Seller makes the Effective representations and warranties set forth in Exhibit B with respect to the Mortgage Loans as of any Purchase Date occurring after the initial Purchase Date. Seller makes the representations and warranties set forth in Exhibit C and Exhibit D with respect to the Mortgage Loans as of the initial Purchase Date.
(d) Seller covenants with Xxxxx, from and after the date hereof, as follows:
(i) Each Party covenants Seller shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Seller shall deliver to the other Party that, it has or will timely acquire Buyer a current Loan Schedule with respect to all regulatory authorizations necessary for it Mortgage Loans subject to legally perform its obligations under this AgreementAgreement with such frequency as Buyer may require but in no event less frequently than weekly; and
(iiiii) If Section 1.02(aNo Mortgage Loan shall be subject to this Agreement for more than one hundred and eighty (180) provides days in aggregate.
(iv) No more than five (5) percent of the Mortgage Loans at any time subject to this Agreement shall have FICO Scores of less than 660.
(v) Seller will not directly or indirectly use any of the proceeds from the sale of the Mortgage Loans, or lend, contribute or otherwise make available any such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person or entity that is subject to sanctions under any program administered by the Generating Facility is an Existing Qualifying FacilityOffice of Foreign Assets Control of the United States Department of the Treasury, thenincluding without limitation those implemented by regulations codified in Subtitle B, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityChapter V, of Title 31, Code of Federal Regulations.
Appears in 1 contract
Samples: Master Repurchase Agreement (Taberna Realty Finance Trust)
Representations, Warranties and Covenants. (a) On Each Member hereby represents, warrants and covenants to the Company and each other Member that the following statements are true and correct as of the Effective Date, and the Trust hereby represents, warrants and covenants to the Company and each Party other Member that the following statements are true and correct as of the Closing Time:
(i) that Member is duly incorporated, organized or formed (as applicable), validly existing, and (if applicable) in good standing under the Law of the jurisdiction of its incorporation, organization or formation; and that Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken;
(ii) that Member has duly executed and delivered this Agreement, and it constitutes the legal, valid and binding obligation of that Member enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);
(iii) that Member is acquiring its Membership Interest based upon its own investigation, and the exercise by that Member of its rights and the performance by such Member of its obligations under this Agreement will be based upon its own investigation, analysis and expertise; its acquisition of its Membership Interest (i) is being made for its own account for investment, and not with a view to the sale or distribution thereof in violation of applicable securities Laws, (ii) is being made pursuant to a valid exemption from registration under the Securities Act and any applicable state securities Laws and in accordance with those Laws, and (iii) does not subject the Company to regulation under the Investment Company Act;
(iv) that Member is (i) not an Ainvestment company@ or company Acontrolled@ by an Ainvestment company@ within the meaning of the Investment Company Act, and (ii) is exempt from, or is not subject to, regulation as a Aholding company@ or a Asubsidiary company@ of a Aholding company,@ in each case as such term is defined in the Public Utility Holding Company Act of 1935, as amended; and
(v) no facts exist with respect to that Member that will either (i) cause the assets of the Company to be Aplan assets@ within the meaning of ERISA, or (ii) give rise to a Aprohibited transaction@ (within the meaning of Section 4.06(a) or (b) of ERISA or Section 4975 of the Code) for which no exemption is available.
(b) The Class A Member hereby represents and warrants to the other Party that:
Class B Member (i) It is that the Class A Member has duly organizedexecuted and delivered the Warrant Assignment and the Warrant Assignment constitutes the legal, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation of the Class A Member enforceable against it in accordance with its termsterms (except as may be limited by bankruptcy, subject to any Equitable Defenses;
(iv) There is not pendinginsolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred equity); and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying FacilityTahiti Series Trust, thenimmediately after the execution of the Warrant Assignment, Seller represents will have good title to the Warrant, free of adverse claims, and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityWarrant has been duly issued.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each 8.1 Each Party hereby represents and warrants to the other Party as of the Commencement Date that:
(ia) It it is a corporation duly organizedorganised, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated;
(b) it has the corporate power and authority and the legal right to enter into this Agreement free from any conflicting right owed to a Third Party and to perform its obligations hereunder;
(c) it has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its formationobligations hereunder and that this Agreement has been duly executed and delivered on behalf of each Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms;
(d) the execution and delivery of this Agreement and the performance of such Party’s obligations do not constitute a default or require any consent under any other contractual obligation of such Party.
8.2 Vernalis represents and warrants that:
(a) as at **, and with respect to the following matters as such matters relate to **:
(i) Vernalis is the registered proprietor/beneficial owner of the Patent Rights, , and owner of the Documentation and the Materials in each case free from encumbrances or other Third Party rights, except for the obligation to pay the Further Royalties **; and its records state that Vernalis has paid all fees relating to the Patent Rights on or before their due date for payment;
(ii) The executionPatent Rights are subsisting and after a review by Vernalis of its records (only) Vernalis does not know of, delivery and performance or of this Agreement are within its powersany basis for, have been duly authorized by all necessary action and do not violate any claim for revocation, amendment, opposition or rectification or any challenge to ownership or entitlement in respect of any of the terms and conditions in its governing documents, Patent Rights (due to non-payment of renewal or other fees or for any contracts to which it is a party or any Applicable Lawsother reason);
(iii) This Agreement constitutes a legally valid No Third Party has alleged that the use by Vernalis of the Documentation and binding obligation enforceable against Materials infringes, either directly or through any other person, its intellectual property rights. To the best of Vernalis’ knowledge and belief, the use by Vernalis of the Documentation and Materials is not infringing and nor has it in accordance with its termsever infringed, subject to either directly or through any Equitable Defensesother person, the intellectual property rights of any Third Party;
(iv) There is not pending, No claim under sections 39 to 43 Patents Xxx 0000 or to its knowledge, threatened against it or, their equivalents in the case any territory has been made in respect of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementPatent Rights.
(b) On the Effective Dateas at **:
(i) Each Party covenants Vernalis is the registered proprietor/beneficial owner of the Patent Rights, and its records state that Vernalis has paid all fees relating to the other Party that, it has Patent Rights on or will timely acquire all regulatory authorizations necessary before their due date for it to legally perform its obligations under this Agreementpayment; and
(ii) If Section 1.02(a) provides No Third Party has alleged that the Generating Facility use by Vernalis of the Documentation and Materials infringes, either directly or through any other person, its intellectual property rights.
8.3 Nothing in this Agreement or any licence granted hereunder is an Existing Qualifying Facilityto be construed as a representation or warranty that BB-76163 or any Product shall be or is capable of being successfully developed or granted regulatory approval by a Regulatory Authority anywhere in the world for the treatment of any indication within the Field; any of the Materials are fit for CTI’s intended use; or that any patent applications included in Patent Rights will proceed to grant.
8.4 Each Party (the “Indemnifying Party”) shall defend, thenindemnify and hold harmless the other Party, Seller represents its directors, officers, employees, successors and warrants assigns (the “Indemnified Party”), from any loss, damage or liability, including reasonable attorney’s fees, relating to Buyer any claim, lawsuit or other action by a Third Party that arises out of, relates to or results from the breach by the Indemnifying Party of any of its representations, warranties or covenants contained within this Agreement (hereinafter a “Claim”).
8.5 If as regards any Claim it is shown by evidence acceptable in a court of law having jurisdiction over the subject matter and meeting the appropriate degree of proof for such action, that the Generating Facility qualifies as an Existing Qualifying FacilityClaim was in whole or in part the result of the negligence, failure to reasonably act or wilful misconduct of any employee or agent of the Indemnified Party or the conduct of any activity to be performed by the Indemnified Party pursuant to this Agreement, then the Indemnifying Party shall not be obligated under Clause 8.4, for that Claim.
8.6 The Indemnifying Party shall have no obligation under Clause 8.4 unless the Indemnified Party:
(a) gives the Indemnifying Party prompt written notice of any Claim for which it seeks to be indemnified under this Agreement; provided, however, that the failure to timely give notice of a Claim shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that such failure has a material prejudicial effect on the defenses or other rights available thereto with respect to such Claim;
(b) the Indemnifying Party is granted full authority and control over the defence including settlement, against such Claim; and
(c) the Indemnified Party co-operates fully with the Indemnifying Party and its agents in defence of such Claim at the sole cost and expense of the Indemnifying Party.
8.7 The Indemnified Party shall have the right to participate in the defence of any such Claim referred to in this Clause 8 utilising attorneys of its choice at its own cost and expense, provided, however, that the Indemnifying Party shall have full authority and control to handle any such Claim, including any settlement or other disposition thereof, for which the Indemnified Party seeks indemnification under Clause 8.4.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On Each Member hereby represents, warrants and covenants to the Company and each other Member that the following statements are true and correct as of the Effective Date, and the Trust hereby represents, warrants and covenants to the Company and each Party other Member that the following statements are true and correct as of the Closing Time:
(i) that Member is duly incorporated, organized or formed (as applicable), validly existing, and (if applicable) in good standing under the Law of the jurisdiction of its incorporation, organization or formation; and that Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken;
(ii) that Member has duly executed and delivered this Agreement, and it constitutes the legal, valid and binding obligation of that Member enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);
(iii) that Member is acquiring its Membership Interest based upon its own investigation, and the exercise by that Member of its rights and the performance by such Member of its obligations under this Agreement will be based upon its own investigation, analysis and expertise; its acquisition of its Membership Interest (i) is being made for its own account for investment, and not with a view to the sale or distribution thereof in violation of applicable securities Laws, (ii) is being made pursuant to a valid exemption from registration under the Securities Act and any applicable state securities Laws and in accordance with those Laws, and (iii) does not subject the Company to regulation under the Investment Company Act;
(iv) that Member is (i) not an Ainvestment company@ or company Acontrolled@ by an Ainvestment company@ within the meaning of the Investment Company Act, and (ii) is exempt from, or is not subject to, regulation as a Aholding company@ or a Asubsidiary company@ of a Aholding company,@ in each case as such term is defined in the Public Utility Holding Company Act of 1935, as amended; and
(v) no facts exist with respect to that Member that will either (i) cause the assets of the Company to be Aplan assets@ within the meaning of ERISA, or (ii) give rise to a Aprohibited transaction@ (within the meaning of Section 4.06(a) or (b) of ERISA or Section 4975 of the Code) for which no exemption is available.
(b) The Class A Member hereby represents and warrants to the other Party that:
Class B Member (i) It is that the Class A Member has duly organizedexecuted and delivered the Asset Assignment [, validly existing the Put Option Agreement and in good standing under the laws of Demand Note, respectively,] [delete if not applicable] and the jurisdiction of its formation;
(ii) The executionAsset Assignment [, delivery the Put Option Agreement and performance of this Agreement are within its powersthe Demand Note] [delete if not applicable] constitute the legal, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation obligations of the Class A Member enforceable against it in accordance with its termstheir respective terms (except as may be limited by bankruptcy, subject to any Equitable Defenses;
(iv) There is not pendinginsolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred equity); and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying FacilityCompany, thenimmediately after the execution of the Asset Assignment, Seller represents will have good title to the Asset, free of adverse claims, [and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitysecurities constituting the Asset have been duly issued]. [Delete if not applicable.]
Appears in 1 contract
Samples: Limited Liability Company Agreement
Representations, Warranties and Covenants. (a) On the Effective DateDebtor represents, each Party represents warrants and warrants to the other Party covenants that:
(ia) It is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction Commonwealth of Massachusetts and has the corporate power and authority to own its formationproperties and to transact the business in which it is engaged;
(iib) It has the corporate power and authority to execute and deliver, and to perform its obligations under the Note and under this Security Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of the Note and this Security Agreement;
(c) The Note and this Security Agreement constitute the legal, valid and binding obligations of the Debtor, enforceable in accordance with their terms;
(d) The execution, delivery and performance of the Note and this Security Agreement are within its powers, have been duly authorized by all necessary action and do will not violate any law or regulation, or any order or decree of any court or governmental instrumentality, or any provision of the terms charter or by-laws of, or any securities issued by, the Debtor, and conditions will not conflict with, or result in its governing documentsthe breach of, or constitute a default under, any contracts indenture, mortgage, deed of trust, agreement or other instrument to which it the Debtor is a party or by which it is bound, and will not result in the creation or imposition of any Applicable Lawslien, charge or encumbrance upon any of the property of the Debtor pursuant to the provisions of any of the foregoing;
(iiie) This Agreement constitutes a legally valid No consent of any other person (including, without limitation, stockholders and binding obligation enforceable against it creditors of the Debtor) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental instrumentality is required in accordance connection with its termsthe execution, subject to any Equitable Defensesdelivery, performance, validity or enforceability of the Note or this Security Agreement;
(ivf) There is The chief executive office of the Debtor and the office where Debtor keeps its books and records relating to the Collateral, and all locations of Collateral are at the addresses set forth on Exhibit "A" hereto;
(g) Debtor will not pendingchange its state of incorporation or organization, its name, its mailing address, its organizational identification number (if it has one), its legal structure, its chief executive office, the office where its books and records are kept, or any locations of Collateral without prior written notice to its knowledgeand consent of Secured Party;
(h) If the Debtor does not, threatened as of the date hereof, have an organizational identification number but obtains one hereafter, the Debtor shall forthwith notify the Secured Party of such organization identification number;
(i) Except for liens in favor of Secured Party and except for liens set forth on Exhibit "B" hereto annexed, the Debtor is the owner of the Collateral and the Collateral is free and clear of all liens and Debtor will not create or suffer to exist any lien on any of the Collateral;
(j) Debtor will not assign, pledge, grant a security interest in, transfer, sell, lease or otherwise dispose of any Collateral, except for inventory sold or consumed in the ordinary course of Debtor's business;
(k) The Collateral is being used, and will continue to be used, in Debtor's business and not for personal, family, household or farming use;
(l) Debtor will use the Collateral for lawful purposes only, with all reasonable care and caution and in conformity with all applicable laws, ordinances and regulations;
(m) The Collateral is now and shall remain personal property, and Debtor will not permit any Collateral to become a fixture without prior written notice to and consent of Secured Party at least thirty (30) days prior to the commencement of such use;
(n) Debtor will keep the Collateral at all times insured by such insurance as Secured Party may from time to time reasonably require and in any event and without specific request by Secured Party will insure the Collateral against it orfire, including so-called extended coverage, theft and, in the case of Sellerany motor vehicle, collision. The Debtor also shall maintain insurance of the kinds, covering the risks and in the relative amounts usually carried by companies engaged in businesses similar to Debtor. All such insurance shall be written by such companies as Secured Party shall reasonably approve, the Secured Party and Debtor named as insureds and loss payees as their respective interests may appear. All policies of insurance shall provide for not less than twenty (20) days' notice of cancellation, change, or termination to Secured Party and, if requested by Secured Party, all policies of insurance shall be delivered to and held by him until all of the Obligations have been fully paid, performed and observed. Debtor shall provide to Secured Party, at least annually, certificates evidencing insurance;
(o) Debtor will, at its sole cost and expense, perform all acts and execute all documents required by Secured Party from time to time to evidence, perfect, maintain or enforce Secured Party's security interest granted herein, and to effectuate or maintain the priority thereof or otherwise to carry out the provisions and purposes of this Security Agreement, including, but not limited to, all acts set forth in paragraph 5;
(p) In his discretion, Secured Party may, at any time and from time to time, for the account of Debtor, pay any amount or do any act required of Debtor hereunder which Xxxxxx fails to do or pay, and any such payment shall be deemed an Obligation payable on demand together with interest at the highest rate then payable on any of the Obligations;
(q) Debtor has not, during the five-year period prior to the date hereof, been known by or used any tradename, fictitious name or any corporate name other than Debtor's name as set forth on Page 1 hereof, which is Xxxxxx's exact legal name, and all invoices in connection with or which evidence Debtor's accounts receivable are billed under such corporate name;
(r) If any proceeds of Collateral are received by Debtor which, pursuant to the provisions hereof are to be received by or turned over to Secured Party, Debtor shall not commingle such proceeds with any of its Related Entitiesother property, any legal proceeding that could materially adversely affect its ability shall hold such proceeds in trust for Secured Party and shall immediately deliver the same to perform under this AgreementSecured Party in the form received;
(vs) No Event of Default with respect to it has occurred All statements in the Perfection Certificate annexed hereto as Exhibit "A" are true and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementcorrect; and
(viiit) It The Debtor has entered into this Agreement in connection with the conduct of at all times conducted its business and it has will from and after the capacity or ability to provide or receive date hereof conduct its business in compliance with all applicable provisions of the Power Product federal Fair Labor Standards Act, as contemplated by this Agreementamended, and with all applicable provisions of federal, state and local statutes, ordinances and regulations dealing with the control, shipment, storage and disposal of oil, hazardous materials and hazardous substances.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Representations, Warranties and Covenants. hereby represents and warrants on behalf of itself and its Affiliates as follows:
(a) On the Effective Date, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within does not conflict with, violate or breach any agreement to which *** or its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in Affiliates is a party or *** or its governing Affiliates constituent documents, (ii) *** and its Affiliates are not prohibited or limited by any contracts law or agreement (to which it is a party party) from entering into this Agreement and (iii) the performance of this Agreement will not create any conflict with any other business or any Applicable Lawsactivity engaged in by *** or its Affiliates as applicable;
(iiib) This Agreement constitutes a legally valid The Excipient shall be Manufactured and binding obligation enforceable against it shipped in accordance compliance with its termscGMP, subject to any Equitable Defensesthe Specifications, and all other Applicable Laws, rules and regulations;
(ivc) There All Excipient delivered by *** hereunder will conform to the Quality Agreement and the Specifications; and
(d) It is not pending, or to its knowledge, threatened against it ordebarred and has not and will not use, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;Agreement in any capacity, the services of any person debarred under subsections 306(a) or (b) of the Generic Drug Enforcement Act of 1992.
(vie) It is acting for its own accountThe Batch Records, executed Batch Records and written procedures maintained by *** will accurately reflect in all material regards the processes and procedures followed by it in the Manufacturing of the Excipient, and the records and written procedures maintained by its decision to enter into this Agreement is based upon its own judgment, not Affiliates will accurately reflect in reliance upon all material regards the advice or recommendations processes and procedures followed by it in the Manufacturing of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;Raw Materials.
(viif) It has not relied Each Certificate of Analysis will reflect the results of the tests conducted on any promises, representations, statements the sample of Excipient or information of any kind whatsoever that are not contained in this Agreement in deciding Raw Materials to enter into this Agreement; andwhich it relates.
(viiig) It has entered into this and/or its Affiliates as applicable will have obtained and maintained in effect all such approvals and permits as may be required under Applicable Laws, rules, regulations and requirements to operate the Manufacturing facility for the Excipient or the Raw Materials for the purposes of Manufacturing Excipient and Raw Materials under the Quality Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by under this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Commercial Supply Agreement (Heron Therapeutics, Inc. /De/)
Representations, Warranties and Covenants. As a material inducement to Lessor to enter into this Master Lease and any subsequent Lease, Lessee represents, warrants and covenants to Lessor that: (a) On the Effective DateLessee is a legal entity, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing organized and in good standing under the laws of the jurisdiction state of its formation;
; (iib) The the execution, delivery and performance by Lessee of this Agreement are within its powers, each Lease shall have been duly authorized by all necessary action and do not violate any of authorized, shall constitute the terms and conditions in its governing documentsvalid, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid legal and binding obligation agreement of Lessee, strictly enforceable against it in accordance with its terms, subject to any Equitable Defenses;
; (ivc) There the Leased Property is personal property and shall not pendingbe or become, or be deemed to its be or become, fixtures, notwithstanding any manner of annexation on or adaptability to the uses and purposes for any real property, or the intentions of the party making any such annexation; (d) Lessee has no affiliation with any Supplier, the Supply Contract represents a bona fide arm’s length transaction, and Lessee shall receive no remuneration from any Supplier in connection with any Lease or the Leased Property; (e) no legal proceeding of any kind is pending or, to Lessee’s knowledge, threatened or contemplated against it or, in the case of Seller, any of its Related Entities, any legal proceeding Lessee that could materially adversely affect its ability to perform under this Agreement;
(v) No may cause an Event of Default with respect Default; (f) the financial statements and other information Lessee has furnished to it has occurred Lessor are true and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own accountcorrect, and its decision accurately represent Lessee’s financial condition and there has been no Material Adverse Change since the date thereof; (g) no information or representation (oral or written) that Lessee, or any agent or representative of Lessee, has furnished to enter into this Agreement is based upon its own judgmentLessor contains any untrue statement of fact, or omits to state a fact necessary to make such information or representation not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understandingmisleading, and understands and accepts the termsthere exists no fact, conditions and risks of this Agreement;
(vii) It circumstance or contingency or combination thereof that Lessee has not relied on any promisesdisclosed to Lessor that, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct passage of its business and it time or the giving of notice, or both, may cause or might reasonably be expected to cause an Event of Default; (h) Lessee has the financial capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreementany Lease; and
and (iii) If Section 1.02(a) provides Lessee is not in default under or in breach of any loan, financing or other agreement or obligation. Each of the foregoing representations, warranties and covenants is made on a continuing basis and shall be deemed reaffirmed as of the execution of each Schedule, and Lessee shall have a continuing affirmative duty to promptly provide notice to Lessor of any event or occurrence that, with the passage of time or the giving of notice, or both, may cause or might reasonably be expected to cause any of the foregoing to become untrue or invalid or an Event of Default. Lessee certifies that the Generating Facility these representations, warranties and covenants are true and accurate, and that Lessor is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitymaterially relying on them. 5.
Appears in 1 contract
Samples: Master Lease Agreement (Destination Maternity Corp)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Seller hereby represents and warrants to the other Party Purchaser that:
(i1) It is duly organizedSeller has full right, validly existing power, and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery authority to execute and performance of deliver this Agreement are within its powersand to consummate the purchase and sale transactions provided for herein without obtaining any further consents or approvals from, have been duly authorized by all necessary action and do not violate or the taking of any of the terms and conditions in its governing documentsother actions with respect to, any contracts to which it is a party or third parties (including any Applicable Laws;
(iii) This Agreement constitutes a legally governmental entity), and this Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding obligation agreement of Seller, enforceable against it Seller in accordance with its terms, subject to any Equitable Defenses;applicable bankruptcy, insolvency or other similar laws relating to or affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iv2) There is not pendingare no actions, suits, claims, assessments, or proceedings pending as to its knowledgewhich Seller has received service of process or other written notice of or, to Seller’s Knowledge, threatened against it or, Seller or the Property (i) in the case nature of Seller, condemnation with respect to any of its Related Entities, any legal proceeding the Property or (ii) that could materially adversely affect its the ownership, operation, or maintenance of the Property or Seller’s ability to perform under this Agreement;hereunder.
(v3) No Event of Default All bills and other payments due with respect to it the ownership, operation, and maintenance of the Property have been paid or will be paid in the ordinary course of business, and will be appropriately prorated and accounted for under Section 10.
(4) Seller has occurred not received written notice of, or otherwise has knowledge of, any existing unsatisfied, written, enforceable claims of any governmental agency to the effect that the construction, operation, or use of any of the Property is in violation of any applicable law, ordinance, rule, regulation or order. To Seller’s Knowledge, no such claim or any investigation with respect thereto is under consideration.
(5) Seller has furnished Purchaser true and complete copies of all items listed in Section 4(c). Except for amounts provided in the reports provided to Purchaser pursuant to Section 4(c)(7), each Tenant Lease is continuing free from default by the landlord and, to Seller’s Knowledge the Tenant or other counterparty thereto. No Tenant Lease contains any option to purchase or grants a Tenant any right of refusal or option to purchase the Property or any portion thereof.
(6) Except for the rights of parties under the Tenant Leases and Occupancy Agreements, there are no parties in possession of the Property, nor parties that have rights as tenants, or rights of use or occupancy of the Property. Except for the agreements provided under Section 4(c)(1) through (3) and governmental authorizations, requirements of law and Permitted Encumbrances, there are no agreements that shall be binding on Purchaser or the Property after Closing. Each such agreement is free from default by Seller and, to Seller’s Knowledge, the counterparty thereto.
(7) Seller has furnished Purchaser with true and complete copies of all environmental or other assessment reports described in Section 4(c)(3) or Section 4(c)(4) and Seller has no knowledge of any fact or circumstance that would cause the conclusions set forth therein to be materially inaccurate.
(8) Except as set forth in Schedule 7(a)(8), there are no leasing commissions due and owing, and no such event allowances for tenant improvements or circumstance will occur as a result obligations to construct tenant improvements, with respect to the Leases, except allowances payable for space that may in the future be leased under the terms of its entering into or performing its obligations under this Agreement;the Tenant Leases.
(vi9) It Seller is acting for its own account, and its decision to enter into this Agreement not a “foreign person” as that term is based upon its own judgment, not defined in reliance upon the advice or recommendations Section 1445(f)(3) of the other Party and it is capable Internal Revenue Code of assessing the merits United States of and understandingAmerica, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementamended.
(b) On From the Effective Date until the Closing Date unless Purchaser otherwise consents in writing (in Purchaser’s sole and absolute discretion), Seller shall: (1) maintain and operate the Property in the same manner as Seller has heretofore done; (2) continue all Tenant Leases in full force and effect and neither cancel, materially amend, nor renew any of the same (other than the termination of leased space contemplated in Section 7(g)); (3) continue all Ancillary Rights, Property Agreements, and insurance policies or contracts relative to the Property in full force and effect and neither cancel, materially amend, nor renew any of the same, or enter into any new such matters, other than (A) in the ordinary course of Seller’s business, (B) matters that will not increase the obligations of Purchaser after the Closing, or (C) as provided for in an existing agreement; and (4) other than as provided in this Section 7(b), not enter into any agreement or instrument or take any action that would encumber the Property after Closing, that would bind Purchaser or the Property after Closing and that would be outside the normal scope of maintaining and operating the Property, other than the Restrictive Covenants; and (5) not enter into any Tenant Lease affecting the Property other than any Tenant Lease with the prospective tenant or Affiliate thereof under a letter of intent delivered under Section 4(c) which is substantially in accordance with the terms of such letter of intent and generally in a lease form consistent with the Tenant Leases (and any such lease entered into in compliance therewith shall be considered a Tenant Lease). Notwithstanding the foregoing, from the Effective Date until the Closing Date:, Seller shall have the authority without the consent of Purchaser to take any actions reasonably necessary to respond to an emergency where property or persons are under imminent threat.
(ic) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under When used in this Agreement; and
(ii) If Section 1.02(a) provides , the term “Affiliate” shall mean, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityPerson.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party represents and warrants to the other Party that:
party as follows: (i) It it is a duly organized, organized and validly existing and in good standing corporation under the laws of the its jurisdiction of its formation;
incorporation; (ii) The execution, it has full corporate power and authority and has taken all corporate action necessary to enter into and perform this Agreement; (iii) the execution and delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and the transactions contemplated herein do not violate any of violate, conflict with, or constitute a default under its charter or similar organization document, its by-laws or the terms and conditions in its governing documents, or provisions of any contracts material agreement or other instrument to which it is a party or by which it is bound, or any Applicable Laws;
order, award, judgment or decree to which it is a party or by which it is bound; and (iiiiv) This this Agreement constitutes a legally is its legal, valid and binding obligation obligation, enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred terms and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementhereof.
(b) On Unigene represents, warrants and covenants to W-X that it will comply with all applicable governmental laws and regulations relating to the Effective Date:manufacture of the Raw Material in the United States.
(c) Unigene represents and warrants that (i) Each Party covenants it is the owner of the entire right and title in and interest to the Unigene Patent Rights; (ii) it is not aware of any infringement of the Unigene Patent Rights and has no knowledge of any claim or allegation or any basis thereof, of patent infringement with regard to the Unigene Patent Rights; (iii) it is not aware of any legal, administrative, arbitration or other Party thatactions, suits, claims or proceedings at law, in equity, or otherwise against it in or before any court or governmental or regulatory authority with respect to the Unigene Patent Rights and no such actions, suits, claims or proceedings have been threatened against it; (iv) it is not aware of any prior art or event (such as prior use, prior sale or similar matter) not cited or disclosed during prosection of the Unigene Patent Rights which is material to the issue of patentability other than that prior art cited during the prosecution of the Unigene Patent Rights; and (vi) it has or will timely acquire all regulatory authorizations necessary for it have the financial ability to legally perform carry out its obligations under this Agreement; andhereunder.
(iid) If Section 1.02(a) provides W-X, represents, warrants and covenants to Unigene that it will comply with all applicable governmental laws and regulations relating to the Generating Facility is an Existing Qualifying Facilitydevelopment, thenFinishing, Seller represents Marketing, distribution and warrants to Buyer that sale of Product in the Generating Facility qualifies as an Existing Qualifying FacilityTerritory.
Appears in 1 contract
Representations, Warranties and Covenants. Of TheraCour. TheraCour represents, warrants and covenants to the Company as follows:
(a) On the Effective Date, each Party represents TheraCour has full legal power to execute and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of deliver this Agreement are within and to perform its powers, obligations hereunder. All acts required to be taken by TheraCour to enter into this Agreement and to carry out the transactions contemplated hereby have been duly authorized by all necessary action properly taken; and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This this Agreement constitutes a legally legal, valid and binding obligation of TheraCour enforceable against it in accordance with its terms, subject to any Equitable Defenses;.
(ivb) There is not pending, or TheraCour has such knowledge and experience in financial and business matters as to its knowledge, threatened against it orbe capable of evaluating the merits and risks of an investment in the Company’s securities and has obtained, in its judgment, sufficient information about the case Company to evaluate the merits and risks of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;an investment in the Company.
(vc) No Event of Default TheraCour is relying solely on the representations and warranties contained in Section 2 hereof, the information contained in the Company’s filing with respect to it has occurred the Securities and is continuing Exchange Commission (“SEC”) and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and in certificates delivered hereunder in making its decision to enter into this Agreement is based upon and consummate the transactions contemplated hereby and no oral representations or warranties of any kind have been made by the Company or its officers, directors, employees or agents to TheraCour.
(d) TheraCour represents, warrants and agrees that (i) any Shares of the Company it receives will be acquired for investment purposes only for their own judgmentaccount or for the account of controlled affiliates, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that they have no present intention of selling, granting any participation in reliance upon or otherwise distributing the advice or recommendations same, (ii) it has not been formed for the specific purpose of acquiring the Shares, (iii) that it is financially sophisticated and is able to fend for itself, can bear the economic risk of the other Party investment, and has such knowledge and experience in financial or business matters that it is capable of assessing evaluating the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
the investment in the Shares, (viiiv) It has not relied on any promises, representations, statements it is an “accredited investor” or information a “qualified institutional buyer” within the meaning of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementcurrent SEC rules.
(be) On TheraCour understands that the Effective Date:Shares it may receive under the Note are “restricted securities” under U.S. federal securities laws inasmuch as they will be acquired by it from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such Shares may be resold without registration only in certain limited circumstances. TheraCour further understands that the Shares may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the any stock exchange unless there is an effective registration statement covering the Shares or the Shares are being sold or transferred in reliance on an exemption, including without limitation Regulation S.
(if) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides TheraCour further understands that the Generating Facility Shares have significant restrictions in their conversion procedures and are not convertible into Common Stock until and unless a “Change of Control” of the Company, as defined in the Certificate of Designation of Series A Convertible Stock, as amended, and that there is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that currently no trading market for trading of the Generating Facility qualifies as an Existing Qualifying FacilityShares.
Appears in 1 contract
Samples: Deferred Expense Exchange Agreement (Nanoviricides, Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It it is duly organizeda “qualified institutional buyer” as defined in Rule 144A under the Securities Act or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act; and
(ii) it is an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, validly existing as amended (the “CEA”), and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Dealer as of the date hereof (and, solely with respect to the representation and warranty set forth in Section 4(b)(i) below, as of any date that Counterparty notifies Dealer that a Settlement Method (including, for the avoidance of doubt, the Alternative Settlement) other than the Default Settlement Method applies or elects cash settlement of a Counterparty Payment Event under clause (o) under “Collateral” above or causes an Additional Termination Event under Section 5(n)(ii) below) that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares, and “material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer;
(ii) it agrees that it will satisfy all applicable filing, reporting or other requirements, including Sections 13(d) and 13(g) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to the Shares and this Transaction and it will promptly notify Dealer after any such report filed under Sections 13(d) and 13(g) of the Exchange Act becomes publicly available;
(iii) it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iv) it is entering into this Confirmation and the Transaction in good standing faith, not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(v) [Reserved]
(vi) [Reserved]
(vii) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act); and
(viii) Counterparty is exclusively a tax resident of the Netherlands.
(c) In connection with this Confirmation and the Transaction, Counterparty agrees that:
(i) it shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting the Transaction;
(ii) it shall, upon the occurrence of any Event of Default or any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default in respect of which it is the Defaulting Party, notify Dealer reasonably promptly of the occurrence of such event; provided, however, that should Counterparty be in possession of material non-public information regarding the Issuer or the Shares, Counterparty shall only communicate such information to Dealer in connection with this Transaction as follows: By email to: XXXXXxxxxxxXxxx-xx@xxxxxx.xxx Attention: Xxxxx Xxxxx
(iii) if Cash Settlement applies to any Component pursuant to the provisions under the heading “Settlement Terms,” in Section 2 above, it shall not engage in any “distribution” (as defined in Regulation M) on the Valuation Date for such Component or the first Scheduled Trading Day thereafter, unless the Shares are “actively traded” (as defined in Rule 101(c)(1) of Regulation M) at such time.
(d) Counterparty represents and warrants to, and covenants with, Dealer as of the date hereof, any Settlement Method Election Date on which Counterparty elects or is deemed to elect Cash Settlement and any date on which Counterparty makes payment to Dealer in connection with any settlement hereunder, that it is or will be, as the case may be, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the business in which it engages.
(e) Each of Dealer and Counterparty agrees that notwithstanding anything provided herein or the Agreement, and notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to disclose to any and all persons, beginning immediately upon commencement of their discussions and without limitation of any kind, the tax treatment and tax structure of the Transaction, and all materials of any kind (including opinions or other tax analyses) that are provided by either party to the other relating to such tax treatment and tax structure.
(f) Counterparty represents, warrants and agrees that (i) Counterparty is subject to civil and commercial laws with respect to its obligations hereunder, (ii) the execution, delivery and performance by it of this Confirmation constitute and will constitute private and commercial acts and not public or governmental acts, and (iii) neither Counterparty nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which Counterparty is organized and existing in respect of its formation;obligations hereunder.
(iig) The executionCounterparty represents, delivery warrants and performance of this Agreement are within agrees that (i) it has implemented and maintains, and will continue to maintain, in effect policies and procedures designed to ensure compliance by it and its powersmanagers, have been duly authorized by all necessary action officers, employees and do not violate any of the terms agents with Anti-Corruption Laws and conditions in applicable Sanctions, and Counterparty and its governing documentsmanagers, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid officers and binding obligation enforceable against it in accordance with its termsemployees and, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it orits agents, are in the case compliance with Anti-Corruption Laws and applicable Sanctions in all material respects, (ii) none of Seller, (a) Counterparty or any of its Related Entitiesmanagers, officers or employees, or (b) to the knowledge of Counterparty, any legal proceeding agent of Counterparty that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not act in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement capacity in connection with or benefit from the conduct Transaction, is a Sanctioned Person, (iii) to the knowledge of its business Counterparty, the Transaction (including the use of proceeds of the Advance Amount) will not violate Anti-Corruption Laws or applicable Sanctions and it has (iv) Counterparty shall not use the capacity proceeds of the Advance Amount (a) in furtherance of an offer, payment, promise to pay, or ability authorization of the payment or giving of money, or anything else of value, to provide any person or receive the Power Product as contemplated by this Agreement.
entity in violation of any Anti-Corruption Laws, (b) On for the Effective Date:
purpose of funding, financing or facilitating any activities, business or transaction of or with a Sanctioned Person, or in any Sanctioned Country, or (ic) Each Party covenants in any manner that would result in the violation of any Sanctions applicable to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityany party hereto.
Appears in 1 contract
Samples: Funded Collar Transaction Confirmation (Waha Capital PJSC)
Representations, Warranties and Covenants. 1. The Grantee represents and warrants as follows:
(a) On The Grantee has the Effective Date, each Party represents full power and warrants authority to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of enter into this Agreement are within its powersand consummate the transaction contemplated by this Agreement, have been duly authorized by to accept the Grant, to execute and deliver this Agreement and all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts or required documents to which it is a party party, and to comply with the terms set forth in this Agreement, which has been duly authorized by any and all necessary action of the Grantee. No approval of any other person or public authority or regulatory body is required as a condition to the validity of this Agreement or, if required, such approval has been obtained.
(b) This Agreement and all Grant Documents have been properly executed and will (i) not violate any Applicable Laws;
laws applicable to Grantee; (ii) not violate any provision, or result in a breach, of any document or agreement binding on the Grantee or affecting its property; and (iii) This Agreement constitutes a legally constitute the valid and legally binding obligation obligations of the Grantee, fully enforceable against it the Grantee, in accordance with its their terms, subject to any Equitable Defenses;.
(ivc) There is not pendingno event of Default on the part of the Grantee under this Agreement or any of the Grant Documents, and no event has occurred or is continuing that, with notice or the passage of time, or to its knowledgeboth, threatened against it or, in the case would constitute an event of Seller, Default under this Agreement or any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;the Grant Documents.
(vd) No Event of Default with respect Grantee has disclosed to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon Funders the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information existence of any kind whatsoever contract, agreement, or arrangement that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It it has entered into with any third party that pertains to the Project, materials, reagents, biological products, protocols, information, Data, and any Project Invention that will result from the Project, specifically including any contract, agreement, or arrangement to keep anything described in this Agreement in connection Section II.1(d) confidential or unavailable for public dissemination.
(e) The Project Budget sets forth all of the expected costs of, and sources of funds for, the Project and has been approved by the Funders.
(f) Upon Xxxxxxx’s knowledge, information, and belief, the Grantee has complied with all laws applicable to Grantee and has obtained all approvals from and reviews by all Governmental Authorities required by all laws applicable to the conduct Project.
2. The Grantee covenants as follows:
(a) The Grantee shall promptly perform all of its business and it has obligations in the capacity or ability to provide or receive the Power Product as contemplated by manner provided in this Agreement.
(b) On The Grant shall be used only in furtherance of the Effective Date:
Project, shall be applied only to Eligible Project Costs, and shall not be applied to any indirect costs, which include, but are not limited to, administrative costs, institutional overheads, purchase or rental of office equipment, etc. An adjustment in the use of the Grant within an existing category set forth in the Project Budget shall not require an amendment to this Agreement as long as (i) Each Party covenants to the other Party thatadjustment is consistent with the purpose of the Grant as set forth in Recital B above, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
and (ii) If Section 1.02(athe adjustment does not exceed ten percent (10%) provides that of the Generating Facility is an Existing Qualifying Facilitycategory from which the Grant proceeds are to be deducted.
(c) The Grantee shall use its best scientific efforts to cause the Project to be completed by the Completion Date.
(d) The Grantee shall maintain its existence in good standing and shall comply with all laws applicable to the Project.
(e) The Grantee shall keep, thenin accordance with generally accepted accounting principles, Seller represents any books, records, and warrants other documents as may be reasonably necessary to Buyer that fully account for the Generating Facility qualifies as an Existing Qualifying Facility.amount and disposition of the Grant, the costs incurred to perform the Project, and the source of all funds expended towards the costs of the Project (“Project Records”). All Project Records shall be maintained at the offices of the Grantee and shall be made available to the Funders or to Funders’ dully authorized representative for inspection, copying, audit, and examination during normal business hours. All Project Records shall be maintained until three
Appears in 1 contract
Samples: Grant Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party hereby represents and warrants to the other Party that:
parties that (i) It it is duly organized, organized and validly existing and in good standing as an entity under the laws of the jurisdiction of its formation;
in which it is chartered or organized, (ii) The execution, delivery it has the requisite entity power and performance of authority to enter into and perform this Agreement are within its powers, have and (iii) this Agreement has been duly authorized by all necessary action corporate action, has been duly executed by one or more duly authorized officers and do not violate any of is the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation agreement of such party enforceable against it such party in accordance with its terms.
(b) LBH and the Share Issuer hereby represent and warrant to the Trustee that (i) upon the delivery or transfer of the Shares to the Trustee as contemplated herein, subject the Shares will be duly authorized, validly issued, fully paid and nonassessable, and the Trustee will receive good and marketable title to the Shares, free and clear of any Equitable Defenses;pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; (ii) neither the execution, delivery nor performance by the Share Issuer of this Agreement will (A) conflict with, result in any breach of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under any term or provision of the organizational documents of the Share Issuer, or any material indenture, agreement, order, decree or other material instrument to which the Share Issuer is party or by which the Share Issuer is bound which materially adversely affects the Share Issuer’s ability to perform its obligations hereunder or (B) violate any provision of any law, rule or regulation applicable to the Share Issuer of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Share Issuer or its properties; and (iii) no consent, license, approval or authorization from, or registration or qualification with any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Share Issuer of this Agreement except such as have been obtained and are in full force and effect.
(c) The Trustee hereby represents and warrants to LBH and the Share Issuer that (i) it understands that the Shares to be purchased by it pursuant to the terms of this Agreement have not and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws, been issued in reliance upon exemptions contained in the Securities Act or interpretations thereof and in the applicable state securities laws, and cannot be offered for sale, sold or otherwise transferred unless the Shares being acquired hereunder is registered or qualified for exemption from registration under the Securities Act, (ii) neither it, nor any of its affiliates, nor any person acting on its or their behalf has engaged, or will engage, in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Shares, (iii) neither it, nor any of its affiliates, nor any person acting on its or their behalf has engaged or will engage in any selling efforts with respect to the Shares, (iv) There it is purchasing the Shares pursuant to Section 4.05 of the Trust Agreement and at the written direction of the Holder of the Class LT-R Certificate, to be held for the benefit of the Holders of the Private Subordinate Certificates and not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, for investment and its decision to enter into this Agreement is based upon its own judgmentnot with a view to, not or for offer or sale in reliance upon the advice or recommendations connection with, any distribution thereof in violation of the Securities Act or other Party applicable securities laws, subject to any requirement of law that the disposition of its property be at all times within its control and (v) it is capable understands that the certificates or other instruments representing the Shares, except as set forth below, shall bear a restrictive legend in substantially the following form (and the Share Issuer may reasonably place a stop-transfer order against transfer of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;such stock certificates):
(viiI) It has not relied on any promisesSecurities Act legend: THE SHARES REPRESENTED BY THIS CERTIFICATE OR ANY CERTIFICATE ISSUED IN EXCHANGE OR TRANSFER THEREFOR HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, representationsAS AMENDED (THE “SECURITIES ACT”), statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
OR APPLICABLE STATE SECURITIES LAWS. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF (viiiI) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementAN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT, OR APPLICABLE STATE SECURITIES LAWS, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (III) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.
(bII) On Any legend imposed or required by the Effective Date:
(i) Each Party covenants to bylaws of the other Party that, it has Share Issuer or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityapplicable state securities laws.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each party to this Confirmation represents and warrants to the other Party party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933 as amended (the “Securities Act”) or any Applicable Laws;
(iiian “accredited investor” as defined in Section 2(a)(15)(ii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this AgreementSecurities Act; and
(ii) If Section 1.02(a) provides that the Generating Facility it is an Existing Qualifying Facility“eligible contract participant” as defined in the Commodity Exchange Act, thenas amended (the “CEA”), Seller and this Confirmation and the Transaction hereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in the CEA.
(b) Counterparty represents and warrants to, and agrees with, Deutsche as of the date hereof that:
(i) it is not aware of any material non-public information concerning the Issuer or the Shares and “material” information for these purposes is any information to Buyer that which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Generating Facility qualifies Issuer;
(ii) it is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares);
(iii) it is entering into this Confirmation and the Transaction in good faith, not as an Existing Qualifying Facility.part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act, and it has not entered into or altered any corresponding or hedging transaction or position relating to the Shares;
(iv) Counterparty is a “qualified investor” (as defined in Section 3(a)(54) of the Exchange Act);
(v) Counterparty owns (as such term is used in Rule 16c-4 under the Exchange Act) a number of Shares (including the Shares pledged to Deutsche pursuant to the “Collateral” provision in Section 2 above), after subtracting the number of Shares to which any put equivalent positions (as defined in Rule 16a-1(h) under the Exchange Act) have been established or are maintained by Counterparty (other than any put equivalent position established as a result of the Transaction), at least equal to the aggregate Number of Transaction Options; and
Appears in 1 contract
Samples: Call Option Transaction (DDR Corp)
Representations, Warranties and Covenants. (a) On the Effective Date, each 8.1 Each Party respectively represents and warrants to warrants, on each day and on a continuing basis during the other Party term of this Agreement that:
(i) It it is duly organized, organized (as applicable) and validly existing and in good standing under the laws of the jurisdiction of its formationorganization or incorporation and, if relevant under such laws, in good standing;
(ii) The executionit has the requisite power to execute and deliver this Agreement, delivery and performance of any other documentation relating to this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid party, and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(viiii) It is acting for its own account, and its decision to enter into the performance of the obligations under this Agreement is based upon its own does not violate or conflict with any existing law, judgment, not in reliance upon the advice order, regulation, or recommendations contractual restriction applicable to or binding on it of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
Assets (vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementas applicable); and
(viiiiv) It has entered into its obligations under this Agreement constitute its legal, valid, and binding obligations, enforceable in connection accordance with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementtheir respective terms.
(b) On 8.2 In addition to the Effective Daterepresentations and warranties in clause 8.1, the Client hereby represents and warrants, on each day and on a continuing basis during the term of this Agreement and each time the Client initiates an Instruction, that:
(i) Each Party covenants the Client has the requisite power to deliver any Instructions hereunder;
(ii) to the best of the Client's knowledge, all required governmental and other Party thatconsents that are required to have been obtained by the Client with respect to this Agreement have been obtained and are in full force and effect and al! conditions of any such consents have been complied with;
(iii) the Client will not use the Services provided by Matrix hereunder in any manner that is, it or would result in, a violation of any applicable laws and regulations;
(iv) the Client is aware of and familiar with, and has or will timely acquire all regulatory authorizations necessary for it been fully informed of, the risks associated with giving Instructions, and is willing to legally perform its obligations under this Agreementaccept such risks, and the Client shall (and shall cause each Authorized Person to) safeguard and treat with extreme care any credentials related to the Custody Account. The Client agrees that the security procedures (if any) to be followed in connection therewith provide a commercially reasonable degree of protection in light of particular needs and circumstances. The Client agrees and understands that an Instruction given in the name of the Client by a designated Authorized Person may conclusively be presumed by Matrix to have been given by an Authorized Person; and
(v) the Client undertakes that it is not, and no transfer of Assets pursuant to any Instruction hereunder is, (i) the target of any Sanctions, or (ii) If Section 1.02(a) provides located, organized, or resident in a country or territory that is, or whose government is, the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitytarget of Sanctions.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 6.1 The GDA Provider hereby represents and warrants to, and covenants with, each of the Cash Manager, the Guarantor and the Bond Trustee at the date hereof, on each date on which an amount is credited to the other Party GDA Account and on each Guarantor Payment Date, that:
(ia) It it is duly organized, validly a Schedule I Bank existing and in good standing under the laws of Canada and duly qualified to do business in every jurisdiction where the jurisdiction nature of its formationbusiness requires it to be so qualified, except where the failure to qualify would not constitute a Material Adverse Event;
(iib) The the execution, delivery and performance by the GDA Provider of this Agreement Agreement
(i) are within its the GDA Provider’s corporate powers, (ii) have been duly authorized by all necessary action corporate action, and (iii) do not violate any contravene or result in a default under or conflict with (1) the charter or by-laws of the terms GDA Provider, (2) any law, rule or regulation applicable to the GDA Provider, or (3) any order, writ, judgment, award, injunction, decree or contractual obligation binding on or affecting the GDA Provider or its property;
(c) it is not a non-resident of Canada within the meaning of the Income Tax Act (Canada);
(d) it possesses the necessary experience, qualifications, facilities and conditions in other resources to perform its governing documents, any contracts responsibilities under this Agreement and the other Transaction Documents to which it is a party or any Applicable Lawsand it will devote all due skill, care and diligence to the performance of its obligations and the exercise of its discretions hereunder;
(iiie) This Agreement constitutes it will comply with the provisions of, and perform its obligations under, this Agreement, the other Transaction Documents to which it is a legally valid party and binding obligation enforceable against it the CMHC Guide, in accordance with its terms, subject to each case in any Equitable Defensescapacity;
(ivf) There it is not pending, or and will continue to its knowledge, threatened against it or, be in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementgood standing with OSFI;
(vg) No Event of Default it is and will continue to be in material compliance with respect its internal policies and procedures relevant to the services to be provided by it has occurred pursuant to this Agreement and the other Transaction Documents to which it is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreementparty;
(vih) It it is acting for its own accountand will continue to be in material compliance with all laws, regulations and its decision rules applicable to enter into it in relation to the services provided by it pursuant to this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of and the other Party and Transaction Documents to which it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementa party; and
(viiii) It has entered into the unsecured, unsubordinated and unguaranteed debt obligations of the Account Bank rated by each of the Rating Agencies are at or above the Account Bank Threshold Ratings.
6.2 The GDA Provider undertakes to notify the Guarantor and the Bond Trustee immediately if, at any time during the term of this Agreement Agreement, any of the statements contained in connection with Section 6.1 ceases to be true. The representations, warranties and covenants set out in Section 6.1 shall survive the conduct signing and delivery of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Guaranteed Deposit Account Contract
Representations, Warranties and Covenants. (a) On the Effective DateIn order to induce Lessor to execute, each Party represents deliver, and warrants to the other Party perform this Agreement, Lessee warrants, represents, covenants and agrees with Lessor that:
(ia) It This Agreement is duly organizednot being made or entered into with the actual intent to hinder, validly existing and in good standing under the laws of the jurisdiction of its formationdelay or defraud any entity or person;
(iib) Except as expressly modified herein, all terms, conditions, rights and obligations as set out in the Lease are hereby reaffirmed and shall otherwise remain in full force and effect as written and agreed;
(c) No action or proceeding, including, without limitation, a voluntary or involuntary petition for bankruptcy under any chapter of the United States Bankruptcy Code, has been instituted by or against Lessee and Lessee has no reasonable basis to believe that any such action or proceeding will be initiated or filed after the date hereof;
(d) The execution, delivery and performance execution of this Agreement are within by Lessee and the performance by Lessee of its powers, have been duly authorized by all necessary action and do obligations hereunder will not violate or result in a breach or constitute a default under any of the terms and conditions in its governing documents, any contracts agreements to which it is a party or any Applicable Lawsparty;
(iiie) This Agreement constitutes a legally valid Lessor has at all times during the business relationship of the parties, acted with commercial good faith toward Lessee, and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it orhas not, in the case of Sellerany way, any of exercised improper conduct or dominion over Lessee or its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementbusiness; and
(viiif) It has entered into this Agreement in connection with Lessor shall be under no duty or obligation to further waive any future default under the conduct Lease or any term or provision of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementLease.
(bg) On Lessee shall make all future rental payments under the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityLease by ACH unless otherwise directed by Lessor.
Appears in 1 contract
Representations, Warranties and Covenants. (a1) On the Effective Date, each Party The Borrower represents and warrants to the other Party AKA that:
(ia) It it is a company duly organized, incorporated and validly existing and in good standing under the laws of the jurisdiction of its formationincorporation, and has full power, authority and legal right to own its assets and to carry on its business;
(iib) The executionit has full power, delivery authority and performance of this Agreement are within its powerslegal right, have been duly authorized by and all necessary corporate action has been taken in order to authorise the Borrower, to enter into and do not violate any of the terms to exercise its rights and conditions in perform its governing documents, any contracts to which it is a party or any Applicable Lawsobligations under this Loan Agreement;
(iiic) This this Loan Agreement constitutes a legally legal, valid and binding obligation obligations of the Borrower enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(ivd) There is all authorisations required from any governmental or other authority of the United States or any state or subdivision thereof (including, but not pending, or to its knowledge, threatened against it or, in the case of Sellerlimited to, any exchange control or transfer permit) or required to be obtained by the Borrower from its shareholders or creditors or any other person for or in connection with the execution, validity, performance and enforceability of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementLoan Agreement have been obtained and are in full force and effect;
(ve) No neither the conclusion nor the performance of this Loan Agreement conflict with the laws of the country of the Borrower’s incorporation;
(f) no Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreementat the time hereof;
(vig) It it is acting for its own accountnot in default under any law, and its decision to enter into this Agreement is based upon its own regulation, judgment, not in reliance upon the advice order, authorization, agreement or recommendations of the other Party and obligation applicable to it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on or any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has assets, the capacity or consequences of which default could have a material adverse affect on the Borrower’s ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Loan Agreement; and;
(iih) If Section 1.02(athere is no litigation, arbitration or administrative proceeding taking place or pending which could have a material adverse effect on the Borrower’s ability to perform its obligations under this Loan Agreement;
(i) provides the conclusion and performance of this Loan Agreement are private and commercial acts of the Borrower, and neither the Borrower nor any of its assets is subject to or entitled to claim immunity or privilege from any set-off, judgment, execution, attachment or other legal process.
(2) The Borrower’s representations and warranties according to para. (1) shall be deemed to be repeated on any date of receipt of a Drawdown Certificate by AKA.
(3) Until full and final discharge of its obligations under this Loan Agreement the Borrower undertakes and covenants that its obligations under this Loan Agreement will at all times rank at least pari passu in all respect with all its other unsubordinated obligations, except those which in a winding-up of the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityBorrower would be preferred solely by operation of law.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On The Issuers, Holdings, and the Effective DateSubsidiaries represent, each Party represents warrant and warrants to the other Party thatcovenant as follows:
(i) It Except for the Interest Defaults, no other Default or Event of Default has occurred and is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;continuing.
(ii) The execution, delivery and performance by the Issuers, Holdings, and the Subsidiaries of this Agreement Agreement:
(A) are within its their corporate or limited partnership powers, as applicable;
(B) have been duly authorized by all necessary action and corporate or limited partnership action, as applicable, including the consent of the holders of its equity interests where required;
(C) do not and will not (A) contravene their certificate of incorporation or by-laws or limited partnership or other constituent documents, (B) violate any (i) applicable material requirement of law or (ii) material order or decree of any governmental authority or arbitrator applicable to them, (C) materially conflict with or result in the breach of, or constitute a default under, or result in or permit the termination or acceleration of, any material contractual obligation of the Company or the Subsidiaries, or (D) result in the creation or imposition of any material lien or encumbrance upon any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations material property of the other Party and it is capable of assessing Company or the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this AgreementSubsidiaries; and
(viiiD) It has entered into this Agreement do not and will not require the consent of, authorization by, or approval of any governmental authority, other than those which prior to the Forbearance Effective Date will have been obtained or made and copies of which prior to the Forbearance Effective Date will have been delivered to counsel to the Noteholder Group and each of which on the Forbearance Effective Date will be in connection with the conduct of its business full force and it has the capacity effect or ability to provide or receive the Power Product as contemplated by this Agreementwould not be material.
(b) On the Effective DateEach Noteholder represents, severally and not jointly, as follows:
(i) Each Party covenants As of the date hereof, each Noteholder either (A) is the sole legal and beneficial owner of the principal amount of Notes set forth opposite its name on the signature pages hereto, or (B) has the investment or voting discretion with respect to such Notes and has the power and authority to bind the beneficial owner(s) of such Notes to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under terms of this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Forbearance Agreement (Masonite International Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, each 11.1 Each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The it has all regulatory authorizations necessary for it to legally perform its obligations under this PPA and any other documentation relating to this PPA;
(iii) the execution, delivery and performance of this Agreement PPA and any other documentation relating to this PPA are within its powersxxxxxx, xxxx have by the Effective Date been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawslaw, rule, regulation, order or the like applicable to it;
(iiiiv) This Agreement this PPA and each other document executed and delivered in accordance with this PPA constitutes a its legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(ivv) There there are no Bankruptcy Proceedings pending or being contemplated by it or, to its knowledge, threatened against it;
(vi) there is not pendingpending or, or to its knowledge, threatened against it or, in the case of Seller, or any of its Related Entities, affiliates any legal proceeding proceedings that could materially adversely affect its ability to perform its obligations under this AgreementPPA or any other document relating to this PPA to which it is a party;
(vvii) No no Event of Default or event which, absent a cure, with the giving of notice or lapse of time, or both, would constitute an Event of Default with respect to it has occurred and is continuing and no such event or circumstance will would occur as a result of its entering into or performing its obligations under this Agreement;PPA or any other document relating to this PPA; and
(viviii) It it is acting for its own account, and has made its own independent decision to enter into this Agreement PPA and as to whether such PPA is appropriate or proper for it based upon on its own judgment, is not in reliance relying upon the advice or recommendations of the other Party in so doing, and it is capable of assessing the merits of and understanding, and understands and accepts accepts, the terms, conditions and risks of the PPA. It is the express intention and understanding of the Parties that all of the representations and warranties hereunder shall survive any termination of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementPPA.
(b) On the Effective Date11.2 Producer represents and warrants to National Grid that:
(i) Each Party covenants No additional generating capacity will be installed at the Production Facility without reasonable prior notice to National Grid. Producer shall coordinate in advance any such installations with National Grid and shall provide National Grid all reasonable assurance, including rights of inspection of the other Party thatProduction Facility, it has or that electricity generated by such additional capacity will timely acquire all regulatory authorizations necessary not be delivered for it sale to legally perform its obligations National Grid under this AgreementPPA, unless an amendment to this PPA permitting such sales has been executed by the Parties; and
(ii) If Section 1.02(a) provides at all times during the term of this PPA all Electricity that Producer delivers and National Grid purchases under the Generating Facility is an Existing Qualifying Facility, then, Seller represents terms of this PPA shall be produced solely and warrants to Buyer that exclusively by the Generating Facility qualifies as an Existing Qualifying Production Facility.
Appears in 1 contract
Samples: Power Purchase Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 1.1 AuEx represents and warrants to the other Party YCMI that:
(ia) It the Property is accurately described in Exhibit “A”, is in good standing under the laws of the State of Nevada, and is free and clear of all liens and encumbrances;
(b) AuEx, Inc. is a company duly organizedincorporated, validly existing and in good standing under the laws of its incorporating jurisdiction, and it has the jurisdiction of its formationrequisite corporate power and capacity to carry on business as presently conducted and to enter into this Agreement;
(iic) The executionthere are no outstanding agreements or options that contemplate the acquisition of the Property or any of the Interest by any other person, delivery with the exception of “Clawback” or NSR royalty payable to Newmont Mining Corporation,
(d) AuEx is the sole lessee of a 100% interest in the Property and the ownership of the Property is accurately described in Exhibit “A” hereto;
(e) the entering into this Agreement and the performance of the obligations of AuEx hereunder will not conflict with any law applicable to it, nor conflict with, or result in a breach of or accelerate the performance required by, any contract or other commitment to which AuEx is a party or by which AuEx is bound;
(f) to the best of the knowledge, information and belief of AuEx, the Company has complied with all applicable environmental laws as they relate to the Property and there have been no breaches of nor liabilities caused or permitted to arise by AuEx under any applicable environmental laws relating to the Property and AuEx has not received notification from any person, including without limitation, any governmental authority of any potential breach or alleged breach of any applicable environmental laws relating to the Property or of any inspection or investigation or possible inspection or investigation by any governmental authority under any applicable environmental law relating to the Property and AuEx has not received any notification of the presence of any contaminates (including hazardous substances, dangerous goods, chemicals or toxic wastes) in the soil or water in, on or under the Property and AuEx has not been subject of any claims or incurred any expenses in respect of the presence of any contaminates in the soil water in, on or under the Property; and
(g) AuEx agrees to assist YCMI in obtaining all governmental licenses and permits required to carry out the exploration and mining operations on the Property as and when necessary.
1.2 YCMI represents and warrants to AuEx that:
(a) YCMI is a company duly incorporated, validly existing and in good standing under the laws of Nevada, and it has the requisite corporate power and capacity to carry on business as presently conducted and to enter into this Agreement;
(b) the entering into this Agreement and the performance of the obligations of YCMI hereunder will not conflict with any law applicable to it, nor conflict with, or result in a breach of, or accelerate the performance required by any contract or other commitment to which it is a party or by which it is bound; and
(c) YCMI has full power, legal right and authority to execute and deliver this Agreement and to perform its obligations hereunder and the execution of this Agreement are within and the performance of its powers, terms have been duly authorized by all necessary action corporate actions on the part of YCMI and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party has been duly executed and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated delivered by this Agreementit.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Representations, Warranties and Covenants. 10.1 Sponsor, on behalf of itself and the Principal Investigator (to the extent that such representations, warranties and covenants relate to the Principal Investigator), represents, warrants and covenants to Company as follows:
(a) On Sponsor and the Effective DateInstitutions have the full power and authority under its constitution, each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by taken all necessary action actions, to execute and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and, and entering into this Agreement, performing its obligations hereunder and granting rights to Company as set forth herein do not conflict with any other agreement to which it is a party;
(b) None of Sponsor, Institutions, the Principal Investigator or Researchers have, or at any time during the Term will have: (i) any financial or other conflict of interest in the outcome of the Research Activities, or (ii) If Section 1.02(aentered into any contract that conflicts with the performance of the Research Activities, or creates a conflict of interest;
(c) provides that Entering into this Agreement and performing the Generating Facility is an Existing Qualifying FacilityResearch Activities hereunder does not, thenand shall not, Seller cause Sponsor, Institutions, the Principal Investigator or any Researcher to be in noncompliance with any policy or procedure of any Sponsor or entity with which Sponsor or such personnel are affiliated. Sponsor further represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.Principal Investigator is permitted to enter into this Agreement and that the terms and conditions hereof are consistent with the Principal Investigator’s obligations to Sponsor;
(d) Sponsor, Institutions and Principal Investigator acknowledge that they have experience, expertise and resources and agree that any compensation paid for services provided herein: (i) was determined by means of good faith, arm’s length negotiation between the Parties, and (ii) constitutes fair market value for the service rendered in light of Sponsor’s, Institutions’ and Principal Investigator’s expertise and experience. Sponsor, Institutions and Principal Investigator acknowledge that they will not offer, pay, request or accept any bribe, inducement, kickback or facilitation payment, and will not make or cause another to make any offer or payment to any individual or entity for the purposes of influencing a decision for the benefit of Company;
(e) If during the Term or within two (2) years of the termination of this Agreement, Principal Investigator is a member of a committee that sets formularies or develops clinical guidelines, Principal Investigator will disclose to such committee the existence and nature of this Agreement and will follow the procedures set forth by the committee. Principal Investigator further agrees to fully comply with all applicable disclosure obligations relating to Principal Investigator’s relationship with Company that may be externally imposed on Principal Investigator based on the requirements of any Sponsor, medical committee or other medical or scientific organization with which Principal Investigator is affiliated;
(f) Sponsor has not used, and shall not use in the Research Activities any Person who: (i) is excluded, debarred, suspended or otherwise ineligible to participate in U.S. federal health care, procurement, or non-procurement programs, (ii) has been convicted of a criminal offense that requires exclusion from a U.S. federal health care program, or
Appears in 1 contract
Samples: Research Agreement
Representations, Warranties and Covenants. (a) On The Company and GS&Co each represent and warrant to and covenant with the Effective Dateother with respect to this Agreement and each option entered into hereunder that:
(i) This Agreement has been duly authorized, executed and delivered by such party and constitutes its valid and legally binding obligation, enforceable against such party In accordance with its terms; and the issuance sale and purchase, as the case may be, of each Party Option will be duly authorized, executed and, when delivered by such party, will constitute the valid and legally binding obligation of such party enforceable against such party in accordance with the terms thereof,
(ii) The execution and delivery of this Agreement by such party does not, and the performance by it of its obligations hereunder and under each Option will not, violate, conflict with or constitute a breach under any agreement or instrument to which it is party or which is binding on any of its properties.
(b) Each party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision the right to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;Option transactions entered into hereunder,
(viic) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants In addition to the other Party thatforegoing, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller Company represents and warrants to Buyer Goldman that (1) as of the Generating Facility qualifies trade date of each Option hereunder the Company's most recent Annual Report on Form 10-K, together with all reports subsequently filed by the Company pursuant to the Exchange Act, taken together, do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances in which they were made, not misleading; and (ii) it has taken such advice from its legal, tax and accounting advisors as an Existing Qualifying Facilityit has deemed necessary prior to entering into this Agreement, and is not relying on Goldman for any such advice regarding this Agreement or any action either party may take or refrain from taking thereunder.
Appears in 1 contract
Samples: Otc Issuer Stock Option Master Agreement (Premisys Communications Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each of Buyer and Seller represents and warrants to the other Party that:
that (i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formation;
obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance; (ii) The it will engage in such Transactions as principal; (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf and upon execution this Agreement will create a legal, valid and binding obligation, enforceable in accordance with its terms; (iv) no approval, consent or authorization of the Transactions contemplated by this Agreement from any federal, state, or local regulatory authority having jurisdiction over it is required or, if required, such approval, consent or authorization has been or will, prior to the Purchase Date, be obtained; (v) the execution, delivery delivery, and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any law, regulation, order, judgment, decree, ordinance, charter, by-law, or rule applicable to it or its property or constitute a default (or an event which, with notice or lapse of the terms and conditions time, or both would constitute a default) under or result in its governing documents, a breach of any contracts to agreement or other instrument by which it is a party bound or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, by which any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
assets are affected; (vi) It is acting for its own account, it has received approval and its decision authorization to enter into this Agreement is based upon and each and every Transaction actually entered into hereunder pursuant to its own judgment, not in reliance upon the advice or recommendations of the other Party internal policies and it is capable of assessing the merits of procedures; and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in neither this Agreement in deciding to enter into this Agreement; and
(viii) It has nor any Transaction pursuant hereto are entered into this Agreement in connection contemplation of insolvency or with the conduct of its business and it has the capacity intent to hinder, delay or ability to provide or receive the Power Product as contemplated by this Agreementdefraud any creditor.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that as of the Generating Facility qualifies Purchase Date for the purchase of any Purchased Student Loans by Buyer from Seller and as of the date of this Agreement and any Transaction hereunder and at all times while this Agreement and any Transaction hereunder is in full force and effect:
(i) Seller represents and warrants that it is duly authorized under the laws of the Commonwealth of Massachusetts and the State of Delaware to execute and deliver this Master Repurchase Agreement and to provide funds for the origination of Student Loans (in the case of Federal Student Loans, by an Existing Qualifying Facilityeligible lender) hereunder, all necessary action on the part of the Seller for the execution and delivery of this Agreement has been duly and effectively taken and this Agreement is the valid and enforceable obligation of the Seller in accordance with the terms.
(ii) Seller covenants that it will service or cause to be serviced all Purchased Federal Student Loans in accordance with applicable provisions of the Higher Education Act and all Purchased Private Student Loans in accordance with applicable requirements of XXXX or those with respect to the TuitionGuard Loans, as applicable.
(c) Seller represents and warrants to the Buyer that each Purchased Student Loan sold hereunder and each pool of Purchased Student Loans sold in a Transaction hereunder, as of the related Purchase Date conform to the representations and warranties set forth in Exhibit III attached hereto and that each Student Loan delivered hereunder as Additional Student Loans or Substituted Student Loans, as of the date of such delivery, conforms to the representations and warranties set forth in Exhibit III attached hereto. Seller further represents and warrants to the Buyer that the Computer Tape with respect to each Purchased Student Loan is complete, true and correct as of the last calendar day of each month. It is understood and agreed that the representations and warranties set forth in Exhibit III attached hereto shall survive delivery of the respective Loan File to Buyer or its designee.
(d) On the Purchase Date for any Transaction, Buyer and Seller shall each be deemed to have made all the foregoing representations with respect to itself as of such Purchase Date.
Appears in 1 contract
Samples: Master Repurchase Agreement (Uici)
Representations, Warranties and Covenants. (a) On the Effective Date, each Each Party represents and warrants to the other Party that:
: (i) It it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
authorized to enter into this Agreement; (ii) The execution, delivery and performance it has the right to carry out all of its obligations herein; (iii) this Agreement are within its powers, have has been duly authorized executed by all necessary action it and do is a valid and legally binding obligation of such Party and enforceable against such Party in accordance with its terms; (iv) it will not violate any of create a conflict with or breach the terms and conditions in its governing documents, of any contracts other agreement to which it is a party by executing or performing this Agreement; and (v) the execution, delivery and performance by the Party under this Agreement will not violate any statute, rule or regulation applicable to either, or any Applicable Lawsorder, writ, judgment, injunction, or decree of any court or other Governmental Authority, or arbitrator to which such Party is subject.
(b) QS represents, warrants and covenants to PowerCo that, to the best of its knowledge as of the Effective Date of this Agreement:
(i) the use of the Licensed IP in accordance with the License does not and will not violate, misappropriate, or infringe upon the Intellectual Property Rights of any third parties;
(ii) it is not involved in any current proceeding, litigation, arbitration or any other claim, and knows of no pending, threatened or actual proceeding, litigation, arbitration or other claim, or any other fact or circumstance, that would reasonably be expected to have a material adverse effect on the use of the Licensed IP;
(iii) This Agreement constitutes a legally valid during the Term, the Licensed IP is and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenseswill be owned or licensable by QS;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case as of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants , QS has not granted any other Person more favorable pricing or other terms for the manufacture of a battery containing QSE5 Technology than the terms provided to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations PowerCo under this Agreement; and
(v) it has not breached Export Control Law in relation to the Licensed IP.
(c) QS covenants that, during the Term, it shall (i) inform PowerCo promptly of the existence of any pending, threatened or actual proceeding, litigation, arbitration or other claim, or any other fact or circumstance, in each case of which QS is aware or a party, that would reasonably be expected to have a material adverse effect on the use of the Licensed IP, and (ii) If Section 1.02(a) provides use reasonable efforts to prevent such a claim, fact or circumstance from occurring and to mitigate the effects of any such claim, fact or circumstance that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityoccurs.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, Buyer and Seller each Party represents and warrants warrants, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any of the terms and conditions in its governing documentslaw, ordinance, charter, by-law or rule applicable to it or any contracts to agreement by which it is bound or by which any of its assets are affected.
(b) Seller represents and warrants to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by Seller to Buyer pursuant to this Agreement are either original documents or genuine and true copies thereof;
(ii) Seller is a party separate and independent corporate entity from the Custodian, Seller does not own a controlling interest in the Custodian either directly or any Applicable Lawsthrough affiliates and no director or officer of Seller is also a director or officer of the Custodian;
(iii) This Agreement constitutes a legally valid None of the Purchase Price for any Mortgage Loan will be used either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and binding obligation enforceable against it in accordance with its terms, subject Seller has not taken any action that might cause any Transaction to violate any Equitable Defensesregulation of the Federal Reserve Board;
(iv) There is not pendingEach Mortgage Loan was underwritten in accordance with the written underwriting standards of Seller furnished by Seller to Buyer, or and no change to its knowledge, threatened against it or, in such underwriting standards has occurred since the case date of the last written revision to such standards was furnished to Buyer by Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event Seller shall be at the time it transfers to Buyer any Mortgage Loans for any Transaction the legal and beneficial owner of Default with respect to it has occurred and is continuing and no such event Mortgage Loans, free of any lien, security interest, option or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;encumbrance; and
(vi) It is acting for its own account, and its decision Seller used no selection procedures that identified the Mortgage Loans relating to enter into this Agreement is based upon its own judgment, not a Transaction as being less desirable or valuable than other comparable assets in reliance upon Seller's portfolio on the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementrelated Purchase Date.
(bc) On Seller makes the Effective representations and warranties set forth at Exhibit B with respect to the Mortgage Loans as of the related Purchase Date.
(d) Seller covenants with Buyer, from and after the date hereof, as follows:
(i) Each Party covenants Seller shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Seller shall deliver to the other Party that, it has or will timely acquire Buyer a current Loan Schedule with respect to all regulatory authorizations necessary for it Mortgage Loans subject to legally perform its obligations under this AgreementAgreement with such frequency as Buyer may reasonably require; and
(iiiii) If Section 1.02(a) provides that Not withstanding any other provision of the Generating Facility is an Existing Qualifying FacilityAgreement, then, Seller represents and warrants no Mortgage Loan shall be subject to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitythis Agreement for more than 180 days in aggregate.
Appears in 1 contract
Samples: Master Repurchase Agreement (Rock Financial Corp/Mi/)
Representations, Warranties and Covenants. (a) On the Effective DateThe Company represents and warrants to each Noteholder, and each Party Noteholder represents and warrants to the other Party thatCompany as follows:
(i) It if an entity, it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(ii) The executionorganization and has all requisite corporate, delivery partnership or other power and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts authority to enter into each Transaction Document to which it is a party and to carry out the transactions contemplated by, and perform its respective obligations under, each Transaction Document to which it is a party;
(ii) the execution, delivery and performance by it of each Transaction Document to which it is a party does not and shall not (A) violate any provision of law, order, rule or regulation applicable to it or any Applicable Lawsof its Affiliates or its certificate of incorporation or bylaws or other organizational documents or those of any of its subsidiaries or (B) conflict with, result in the breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligations to which it or any of its Affiliates is a party or under its certificate of incorporation, bylaws or other governing instruments;
(iii) This Agreement constitutes the execution, delivery and performance by it of each Transaction Document to which it is a party does not and shall not require any registration or filing with, the consent or approval of, notice to, or any other action with respect to, any Federal, state or other governmental authority or regulatory body, except such filings as may be necessary or required by the Commission;
(iv) each Transaction Document to which it is a party has been duly authorized, executed and delivered and, assuming the due execution and delivery of such Transaction Document by each of the other parties thereto, each such Transaction Document is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, subject except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;affecting creditors’ rights generally; and
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement been represented by counsel in connection with the conduct of its business Transaction Documents and it has the capacity or ability to provide or receive the Power Product as transactions contemplated by this Agreementthe Transaction Documents.
(b) On Each of the Effective DateNoteholders further represents and warrants to the Company that:
(i) Each Party covenants as of the date of this Agreement, such Noteholder is the beneficial owner of, or the investment adviser or manager for the beneficial owners of, the aggregate principal amount of Consenting Notes set forth opposite such Noteholder’s name on Schedule A hereto, which represents all of the Notes held by such Noteholder, with the requisite power and authority to vote such Consenting Notes, and such Consenting Notes are owned free and clear of any liens, encumbrances, equities or claims, other than those under securities laws or any ordinary course claims, including, without limitation, in connection with pledges in connection with bona fide margin accounts or other loan or financing agreement secured by the Consenting Notes;
(ii) as of the date of this Agreement and through expiration of the Consent Solicitation, such Noteholder has full legal power, authority and right to consent to the Proposed Amendments with respect to its Consenting Notes then held of record or beneficially owned by it, in each case without the consent, approval of, or any other Party thataction on the part of, it any other person or entity; and such Noteholder has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under not entered into any voting agreement (other than this Agreement) with any Person with respect to any of its Consenting Notes, granted to any Person any of its Consenting Notes, deposited any of its Consenting Notes in a voting trust or entered into any arrangement or agreement with any Person limiting or affecting its legal power, authority or right to vote such Consenting Notes on any matter; and
(iiiii) If Section 1.02(a) provides that such Noteholder has reviewed, or has had the Generating Facility is an Existing Qualifying Facilityopportunity to review, thenwith the assistance of professional and legal advisors of its choosing, Seller represents and warrants sufficient information necessary for such Noteholder to Buyer that decide to consent to the Generating Facility qualifies as an Existing Qualifying FacilityProposed Amendments pursuant to the Consent Solicitation.
Appears in 1 contract
Samples: Consent Solicitation Support Agreement (Pernix Therapeutics Holdings, Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 6.1. The Client hereby represents and warrants (and such representations and warranties are continuing and shall be deemed to be reaffirmed upon a Withdrawal Request by the other Party Client) that:
(i) It The Client is of or over the age of 18 years and has the legal capacity to enter into the Agreement with Matrix and agrees to be bound by all the terms and conditions of the Agreement;
(ii) The Client is duly organized, incorporated and validly existing and in good standing under the laws of the jurisdiction in which it is organized or incorporated and, where relevant, the Client is in good standing under such law;
(iii) The Client has the right to enter into the Agreement, to submit withdrawal applications and to perform its obligations hereunder;
(iv) The Client’s performance of the Agreement will not result in a breach of, and will not result in a conflict with, any law, judgment, order, regulation or contractual obligation applicable to or binding on the Client or any of the Client’s Assets;
(v) To the fullest extent known to the Client, all governmental and other consents required to be obtained by the Client in connection with the Agreement and any Withdrawal Request have been obtained, such consents are in full legal force and effect, and all conditions of such consents have been satisfied;
(vi) The Client’s obligations hereunder shall constitute legal, valid and binding obligations of the Client, which are enforceable in accordance with their respective terms.
(vii) The Client shall not use the Services provided by the Company in a manner that violates or results in a violation of any applicable laws and regulations.
(viii) The Client is aware of, familiar with, and has been adequately informed of the risks associated with its formationmaking Proper Instructions, and the Client is willing to accept such risks; the Client shall (and shall procure that each Authorized Person shall) protect any credentials associated with Proper Instructions and exercise a high degree of care with respect to such credentials. The Client hereby understands that there exist more secure methods of making or delivering Proper Instructions than the method selected by the Company, and the Client hereby agrees that the security procedures to be followed (if any) provide commercially reasonable protection in light of the particular needs and circumstances. The Client hereby agrees and understands that a Withdrawal Request made under Proper Instructions may be inferred by the Company to have been made by Authorized Persons and that the Company may (after review) act upon such Withdrawal Request; and
(ix) The Client hereby agrees and understands that the Backed Digital Assets are a new category of assets, that the laws relating to the ownership, custody and transfer of the Backed Digital Assets are evolving and subject to uncertainty, and that custody of such Assets will involve risks not present in traditional categories of assets; the Client hereby further agrees and understands that the Client shall bear such risks and the loss or dilution of the value of the Backed Digital Assets resulting from changes or developments in laws or in the conditions of existing laws (where the Client’s rights to the Backed Digital Assets are not adequately protected).
(x) The Client is not, and the transferee of Assets resulting from any Withdrawal Request is not, (i) subject to any law administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or other governmental entity that imposes economic sanctions and trade embargoes (“Economic Sanctions Act”); (ii) located in, organized in, or a resident of, a country or region that is the subject of sanctions by OFAC or any other governmental entity (or a country or region whose government is the subject of such economic sanctions).
6.2. The Company hereby represents and warrants (and such representations and warranties are continuing and shall be deemed to be reaffirmed and made upon processing of a Withdrawal Request by the Company) that:
(i) The Company is duly incorporated and validly existing under the laws of the jurisdiction in which it is organized or incorporated and, where relevant, the Company is in good standing under such law;
(ii) The executionCompany has the right to enforce and deliver the Agreement to satisfy Withdrawal Requests initiated by the Client and perform its obligations hereunder, delivery and performance of this Agreement are within the Company has taken all actions necessary to perform its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Lawsobligations hereunder;
(iii) This The Company’s performance of the Agreement constitutes will not result in a legally valid breach of, and will not result in a conflict with, any law, judgment, order, regulation or contractual restrictions applicable to or binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenseson the Company;
(iv) There is not pendingThe Company’s obligations hereunder shall constitute legal, or to its knowledgevalid and binding obligations of the Company, threatened against it or, which are enforceable in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;accordance with their respective terms.
(v) No Event of Default with respect The Company has established the client asset protection fund to it has occurred safeguard the Client’s Assets under custody and is continuing and no such event or circumstance to ensure that the Client’s Assets under custody will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision be compensated by the Company’s client asset protection fund promptly in case they are damaged due to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations Company’s security incidents during the custody of the other Party and it is capable of assessing Client’s Assets. (See 11.2 for the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.compensation rules)
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each 15.1.1 Each Party represents and warrants to the other Party thatas of the Effective Date as follows:
(ia) It it is a duly organized, organized and validly existing and in good standing corporation under the laws of the its jurisdiction of its incorporation or formation;
(iib) The it has full corporate power and authority and has taken all corporate action necessary to enter into and perform this Agreement;
(c) this Agreement is its legal, valid and binding obligation, enforceable in accordance with the terms and conditions hereof; and
(d) the execution, delivery and performance of this Agreement are within its powersby such Party and the transactions contemplated herein, have been duly authorized including the rights granted hereunder or the exercise of such rights as contemplated by all necessary action and this Agreement, do not violate (A) violate, conflict with, or constitute a breach of or under, its charter or similar organization document, its by-laws or any order, award, judgment, decree, agreement or instrument to which such Party or any of the terms and conditions in its governing documents, any contracts to Affiliates is a Party or by which it is a party bound, or (B) require the consent of, or notice to, any Applicable Laws;Person or the authorization of (by notice or otherwise) any Agency.
15.1.2 Cubist represents and warrants, as of the Effective Date, and covenants to Optimer that:
(iiia) This Agreement constitutes a legally valid and binding obligation enforceable against neither it in accordance with nor its terms, Affiliates has been debarred or is subject to debarment and neither it nor its Affiliates will use in any Equitable Defenses;
(iv) There is not pending, or to its knowledge, threatened against it orcapacity, in connection with the case performance of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It , any person who is acting for its own account, and its decision debarred pursuant to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations Section 306 of the other Party and Act or who is the subject of a conviction described in such section. Cubist will notify Optimer in writing immediately if it or any Cubist Sales Representative or Cubist Medical Affairs Representative is capable debarred or is the subject of assessing a conviction described in Section 306 of the merits Act, or if any action, suit, claim, investigation, or legal or administrative proceeding is pending or, to the best of and understandingCubist’s knowledge, and understands and accepts is threatened, relating to the terms, conditions and risks debarment or conviction of this Agreement;
(vii) It has not relied on Cubist or any promises, representations, statements Cubist Sales Representative or information Cubist Medical Affairs Representative pursuant to Section 306 of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementthe Act; and
(viiib) It to the Knowledge of Cubist, except as would not reasonably be expected to have a material adverse effect on the Promotion of the Product in the Territory, (A) Cubist and its Affiliates have Promoted its products in the Territory in compliance with Applicable Law in all material respects, (B) as of the Effective Date, neither Cubist nor any of its Affiliates (x) is being investigated, and there are no ongoing investigations by, any Agency in the Territory specifically or primarily relating to the Promotion of any product in the Territory, nor (y) has entered into this Agreement Cubist or any of its Affiliates received written notice that any Agency in the Territory intends to conduct any such investigation, and (C) neither Cubist nor any of its Affiliates (x) is a party or the subject of any action, suit or other proceeding (collectively, “Proceeding”) that is pending as of the Effective Date or was pending or filed at any time during the two year period prior to the Effective Date, that alleges that Cubist or any of its Affiliates have violated any Applicable Law in the Territory in connection with the conduct Promotion of any product in the Territory, nor (y) has Cubist or any of its business and it has Affiliates received any threats in writing of any such Proceeding as of the capacity Effective Date or ability at any time during the two year period prior to provide or receive the Power Product as contemplated by this AgreementEffective Date.
(b) On 15.1.3 Optimer represents and warrants that, as of the Effective Date:
(ia) Each Party covenants to the Knowledge of Optimer, neither the manufacture or importation of the Product for sale in the Territory nor the use, sale or offer for sale of the Product in the Territory infringes or misappropriates any valid claims of any Third Party’s patent rights or any trademark, copyright or trade secret of a Third Party that is not licensed to or otherwise controlled by Optimer or its Affiliates;
(b) to the Knowledge of Optimer, Optimer has not been subject to any action, suit, claim, hearing or other proceeding, at law or equity, in or before any court or arbitrator in which the counterparty alleged that (A) the manufacture, use, distribution, import, sale, or offer for sale of the Product in the Territory infringes or misappropriates any patent, trademark, copyright or trade secret right of any Third Party, or (B) the use of the Product in the Territory resulted in any death, personal injury or other harm to any Person;
(c) to the Knowledge of Optimer, (A) neither Optimer nor any of its Affiliates (x) is being investigated, and there are no ongoing investigations, by any Agency in the Territory specifically or primarily relating to any allegation that the Promotion of the Product in the Territory violates Applicable Law, or (y) has received written notice that any Agency in the Territory intends to conduct any such investigation, and (B) neither Optimer nor any of its Affiliates is a party or the subject of any Proceeding that is pending as of the Effective Date or was pending or filed at any time during the two year period prior to the Effective Date, that alleges that Optimer or any of its Affiliates have violated any Applicable Law in the Territory in connection with the Promotion of the Product in the Territory, nor has Optimer or any of its Affiliates received any threats in writing of any such Proceeding as of the Effective Date or at any time during the two year period prior to the Effective Date;
(d) any in-license agreements pursuant to which a Third Party thatgranted to Optimer or any of its Affiliates the right to manufacture, it has use, distribute, import, sell, or will timely acquire all regulatory authorizations necessary offer for it to legally perform its obligations under this Agreementsale the Product in the Territory are valid and in force; and
(iie) If Section 1.02(aneither Optimer nor any of its Affiliates has granted any license or sublicense to any Third Party to sell any Product (other than Product sold by Optimer or its Affiliates) provides that in the Generating Facility Territory.
(f) In addition, Optimer covenants to Cubist that, during the Term, Optimer (or its applicable Affiliate) will, if Regulatory Approval for the Product in the Territory is an Existing Qualifying Facilityobtained, thenhold the Product NDA and otherwise obtain all other licenses, Seller represents authorizations, permissions, consents and warrants approvals from any Agency necessary to Buyer that use, Promote, sell and offer for sale the Generating Facility qualifies Product in the Territory, and all licenses, authorizations, permissions, consents and approvals from any Agency (or applicable foreign equivalent) to manufacture the Product for sale in the Territory, in each case except as an Existing Qualifying Facilitywould not reasonably be expected to have a material adverse effect on the Promotion of the Product in the Territory.
15.1.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY HERETO MAKES, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT, THE PRODUCT (INCLUDING THE SAFETY OR EFFICACY THEREOF) OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR COVERAGE OF ANY PRODUCT BY OR VALIDITY OF ANY PATENTS, AND ANY AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
Appears in 1 contract
Samples: Co Promotion Agreement (Optimer Pharmaceuticals Inc)
Representations, Warranties and Covenants. (a) On The Issuer hereby expressly assumes and agrees and undertakes to pay, perform and otherwise discharge as the Effective Datesame shall become due in accordance with their -------------- /1/ Certain information has been deleted from this document where denoted by asterisks, each Party and has been filed separately with the Commission. The Company has requested confidential treatment for such omitted information. respective terms, all duties, responsibilities and obligations of the Holder of the Certificate of Beneficial Ownership under the Pooling Agreement;
(b) Each of the Depositor and the Issuer hereby agrees, at any time and from time to time, to obtain, procure, execute, deliver, affix and file all such further agreements, bills of sale and assignments, instruments, documents, receipts, notices, statements, powers, writings and information, and to do and cause to be done all such further acts and things as the other party may reasonably request in connection herewith;
(c) Each of the Depositor and the Issuer represents and warrants to the other Party that:
, effective as of the Closing Date, (i) It it is duly organized, validly existing and in good standing under the laws of in the jurisdiction of its formation;
organization and that its principal place of business and chief executive office is in the State of California, (ii) The it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (iii) neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder, will conflict with or result in a breach or default under any of its organizational documents, any law, rule, regulation, judgment, order or decree to which it is subject or any agreement or instrument to which it is a party, and (iv) this Agreement, and its execution, delivery and performance of this Agreement are within its powers, hereof have been duly authorized by all necessary action it, and do not violate any of the terms this Agreement has been duly executed and conditions in delivered by it and constitutes its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defensesthe terms hereof;
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Certificate Purchase Agreement (Atherton Capital Inc)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party 6.1 The GIC Provider hereby represents and warrants to, and covenants with, each of the Cash Manager, the Guarantor and the Bond Trustee at the date hereof, on each date on which an amount is credited to the other Party GIC Account and on each Guarantor Payment Date, that:
(ia) It it is duly organized, validly a Schedule II Bank existing and in good standing under the laws of Canada and duly qualified to do business in every jurisdiction where the jurisdiction nature of its formationbusiness requires it to be so qualified, except where the failure to qualify would not constitute a Material Adverse Event;
(iib) The the execution, delivery and performance by the GIC Provider of this Agreement Agreement
(i) are within its the GIC Provider’s corporate powers, (ii) have been duly authorized by all necessary action corporate action, and (iii) do not violate any contravene or result in a default under or conflict with (1) the charter or by-laws of the terms GIC Provider, (2) any law, rule or regulation applicable to the GIC Provider, or (3) any order, writ, judgment, award, injunction, decree or contractual obligation binding on or affecting the GIC Provider or its property;
(c) it is not a non-resident of Canada within the meaning of the Income Tax Act (Canada);
(d) it possesses the necessary experience, qualifications, facilities and conditions in other resources to perform its governing documents, any contracts responsibilities under this Agreement and the other Transaction Documents to which it is a party or any Applicable Lawsand it will devote all due skill, care and diligence to the performance of its obligations and the exercise of its discretions hereunder;
(iiie) This Agreement constitutes it will comply with the provisions of, and perform its obligations under, this Agreement, the other Transaction Documents to which it is a legally valid party, and binding obligation enforceable against it the CMHC Guide, in accordance with its terms, subject to each case in any Equitable Defensescapacity;
(ivf) There it is not pending, or and will continue to its knowledge, threatened against it or, be in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreementgood standing with OSFI;
(vg) No Event of Default it is and will continue to be in material compliance with respect its internal policies and procedures relevant to the services to be provided by it has occurred pursuant to this Agreement and the other Transaction Documents to which it is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreementparty;
(vih) It it is acting for its own accountand will continue to be in material compliance with all laws, regulations and its decision rules applicable to enter into it in relation to the services provided by it pursuant to this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of and the other Party and Transaction Documents to which it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreementa party; and
(viiii) It has entered into the applicable ratings of the GIC Provider by each of the Rating Agencies are at or above the Account Bank Threshold Ratings.
6.2 The GIC Provider undertakes to notify the Guarantor and the Bond Trustee as soon as reasonably practicable if, at any time during the term of this Agreement Agreement, any of the statements contained in connection with Section 6.1 ceases to be true. The representations, warranties and covenants set out in Section 6.1 shall survive the conduct signing and delivery of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Guaranteed Investment Contract
Representations, Warranties and Covenants. Each Indemnitor hereby ----------------------------------------- represents, warrants and covenants each as to himself/herself or itself as follows:
(a) On the Effective Date, each Party represents Indemnitor is a corporation duly organized and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing under the laws of ___________, is fully authorized to do business in the State of [jurisdiction of its formation;where Premises is located], and has full power and authority to consummate the transactions contemplated hereby.
(iib) The execution, delivery [Each of] the Individual Indemnitor[s] is of legal age and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Applicable Laws;under no legal disability.
(iiic) This Agreement has been duly executed and delivered by each Indemnitor and constitutes a legally the valid and binding obligation obligations of each Indemnitor and is enforceable against it each Indemnitor in accordance with its terms, subject to any Equitable Defenses;.
(ivd) There is not pending, or to its knowledge, threatened against it or, in The consummation of the case transactions contemplated hereby and the performance by each Indemnitor of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;Agreement will not result in any breach of, give rise to a lien under, or constitute a default under, any mortgage, deed of trust, lease, bank loan or credit agreement, partnership agreement, corporate charter, by-laws or other agreement or instrument to which any Indemnitor is a party or by which it may be bound or affected.
(vie) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, Each Indemnitor will promptly comply with all conditions and risks of this Agreement;
. Indemnitor will promptly (viiupon transmittal or receipt) It has not relied on deliver to Lender copies of all notices and correspondence with respect to: (i) this Agreement, (ii) any promises, representations, statements or information material adverse change in the financial condition of any kind whatsoever that are not contained Indemnitor, (iii) Lender's security and (iv) any violation or potential violation of any approval, authorization, or permit issued in this Agreement regard to the Premises. Each Indemnitor will promptly and fully respond to any inquiry of Xxxxxx made with respect to any of the matters described in deciding the preceding sentence and will permit Lender, upon Xxxxxx's written request, to enter into this Agreement; and
(viii) It has entered into this Agreement participate in connection any inquiry, hearing or meeting with regard to any of the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementforegoing.
(bf) On Each Indemnitor agrees to pay on written demand all expenses (including reasonable legal services of every kind and cost of any insurance, any payment of taxes or other charges) of, or incidental to, or in any way relating to the Effective Date:enforcement or protection of the rights of Lender hereunder.
(ig) Each Party covenants Indemnitor is deriving or expects to derive a financial or other advantage from each and every Obligation incurred by Indemnitor to Lender.
(h) Each Indemnitor acknowledges receipt and approval of the Note, the Mortgage and the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityLoan Documents.
Appears in 1 contract
Representations, Warranties and Covenants. (a) On the Effective Date, each Party
2.1 Optionor represents and warrants to the other Party to, and covenants with Optionee that:
(a) it has the necessary capacity to enter into this Agreement and any agreement or instrument referred to herein or contemplated hereby and to consummate the transactions contemplated hereby;
(b) neither the execution and delivery of this Agreement, nor any of the agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated conflict with, result in the breach of or accelerate the performance required by, any agreement to which it is a party;
(c) the execution and delivery of this Agreement and the agreements referred to herein or contemplated hereby will not violate or result in the breach of the laws of any jurisdiction applicable to it;
(d) it has duly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation of it enforceable against it in accordance with its terms;
(e) Optionor owns an undivided 100% legal, beneficial and recorded interest in and to the Property and has the exclusive right to enter into this Agreement and all necessary authority to dispose of an undivided 100% interest in and to the Property in accordance with the terms of this Agreement;
(f) the Property is properly and accurately described in Schedule A to this Agreement, and the mineral claims comprising the Property have been properly located and staked pursuant to the applicable laws and regulations of the Province of Quebec and are in good standing;
(g) the Property is in good standing and the mineral claims comprising the Property are free and clear of any Encumbrances or third party interests or other interest whatsoever in production from any part of the Property and no royalty is payable in respect of any part of the Property, and Optionor is not aware of any agreements or options to grant or convey any interest or rights in the Property or to pay any royalties with respect to the Property in force as of the date hereof, other than the NSR Royalty;
(h) other than this Agreement, Optionor is not a party to any outstanding agreements or options to acquire, purchase or sell the Property or any portion thereof or any interest therein;
(i) It no part of the Property is subject to any area of common interest or similar obligation to or with a third person;
(j) there is no adverse claim or challenge against or to the ownership of or title to any part of the Property, and no party has any right, title, claim or other interest in the Property, nor to the knowledge of Optionor after due inquiry is any of the foregoing pending or threatened nor is there any basis therefor;
(k) all fees, taxes, assessments, rentals, levies or other payments, and all reports and other filings, required to be made to such date relating to the Property have been made in a timely manner;
(l) to Optionor’s knowledge, there are no actions, or claims, investigations, suits, proceedings or inquiries (judicial or otherwise) pending or threatened against or relating to the Property before or by any governmental or regulatory agency or board, which would reasonably be expected to have a materially adverse effect on the ability of Optionor to perform its obligations hereunder;
(m) there has been no known spill, discharge, deposit, leak, emission or other release of any contaminant, pollutant, dangerous or toxic substance, or hazardous waste on, into, under or affecting the Property and no such contaminant, pollutant, dangerous or toxic substance, or hazardous waste is stored in any type of container on, in or under the Property and there is no outstanding directive or order or similar notice issued by any regulatory agency, including agencies responsible for environmental matters, affecting the Property or Optionor nor to the knowledge of Optionor after due inquiry is there any basis therefor or any reason to believe that such an order, directive or similar notice is pending;
(n) no reclamation, rehabilitation, clean-up, closure, other environmental corrective, restoration or abandonment obligations exist directly or indirectly with respect to the Property;
(o) Optionor has not received from any governmental or regulatory agency or board, any notice of or communication relating to any actual or alleged environmental claims, and there are no outstanding work orders or actions required to be taken relating to environmental matters respecting the Property or any operations carried out on the Property;
(p) to the best of its knowledge, (i) there are no pending or ongoing actions taken against Optionor by or on behalf of any aboriginal councils, groups or individuals pursuant to the assertion of any land claims or rights with respect to the Property; (ii) Optionor has not entered into any impact and benefits agreements, memorandums of understanding, other agreements of the same nature or any other contracts with any aboriginal individuals, groups or councils in relation to the Property and none have been proposed; and (iii) no aboriginal councils, groups or individuals or other stakeholders have informed Optionor that they oppose the exploration of the Property or the development of a mining project thereon;
(q) all work carried out on the Property by or under Optionor’s direction has been done in full compliance with all applicable laws and regulations and it has no reason to believe that all prior work carried out on the Property by third parties has not been done in full compliance with all applicable laws and regulations;
(r) to the best of Optionor's knowledge, information and belief, no part of the Property lies within any protected area, rescued area, reserve, reservation or reserved area or other designated area, that would impair the development of a mining project thereon;
(s) Optionor is a resident of Canada for the purposes of the Income Tax Act (Canada); and
(t) Optionor has provided to Optionee data, maps, interpretive data, samples and other materials relevant to the Property for evaluation in the possession or control of Optionor and Optionor will permit Optionee to retain possession of such materials and information during the Option Period, it being understood that these materials will remain in Optionee's possession in the event the Option is exercised and, if the Option is not exercised, returned to Optionor; and
(u) during the Option Period, Optionor will immediately notify Optionee of any defaults with respect to ownership of the Property and will not abandon any portion of the Property without the prior written consent of Optionee.
2.2 Optionee represents and warrants to, and covenants with Optionor that:
(a) it is a company duly organized, validly existing and in good standing under the laws of the jurisdiction Province of its formationBritish Columbia;
(iib) The execution, it has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to herein or contemplated hereby and to consummate the transactions contemplated hereby;
(c) neither the execution and delivery and performance of this Agreement are within its powersAgreement, have been duly authorized by all necessary action and do not violate nor any of the terms and conditions agreements referred to herein or contemplated hereby, nor the consummation of the transactions hereby contemplated conflict with, result in its governing documentsthe breach of or accelerate the performance required by, any contracts agreement to which it is a party or any Applicable Lawsparty;
(iiid) This the execution and delivery of this Agreement and the agreements referred to herein or contemplated hereby will not violate or result in the breach of the laws of any jurisdiction applicable to it or its constating documents;
(e) all corporate authorizations have been obtained for the execution of this Agreement and for the performance of its obligations hereunder;
(f) it has duly executed and delivered this Agreement and this Agreement constitutes a legally legal, valid and binding obligation of it enforceable against it in accordance with its terms; and
(g) upon termination of this Agreement, subject Optionee will return or assign to Optionor all technical information and data, maps, interpretive data, samples and other material relevant to the Property and in its possession.
2.3 The representations, warranties and covenants set out in this ARTICLE 2 are conditions on which the parties have relied in entering into this Agreement, and will survive the exercise of the Option or the termination of this Agreement in accordance with its terms, whichever will first occur, for a period of one year. Each party will indemnify and save the other harmless from all losses, damages, costs (including reasonable legal expenses, but not including losses of profits or opportunity or punitive or incidental damages), actions and suits arising out of or in connection with any breach of any representation or warranty contained in this Agreement, and each party will be entitled, in addition to any Equitable Defenses;
(iv) There is not pendingother remedy to which it may be entitled, to set off any such loss, damage or to its knowledge, threatened against costs suffered by it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision any such breach against any payment required to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated be made by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilityany other party hereunder.
Appears in 1 contract
Samples: Property Option Agreement
Representations, Warranties and Covenants. of the ------------------------------------------------ Seller and the Originator. -------------------------
(a) On the Effective Date, each Party The Originator hereby represents and warrants to the other Party Seller and the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) It The Originator is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Originator in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its formationability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(ii) The Originator has the full corporate power and authority to originate, hold, sell and service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Originator the execution, delivery and performance of this Agreement are within its powersAgreement; and this Agreement, have been duly authorized assuming the due authorization, execution and delivery thereof by all necessary action and do not violate any of the terms and conditions in its governing documentsPurchaser, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally legal, valid and binding obligation of the Originator, enforceable against it the Originator in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any Equitable Defensesproceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Originator, the servicing of the Mortgage Loans by the Originator under the Pooling and Servicing Agreement, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Originator and will not (A) result in a breach of any term or provision of the charter or by-laws of the Originator or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Originator is a party or by which it may be bound, or any statute, order or regulation applicable to the Originator of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Originator; and the Originator is not a party to, bound by, or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Originator's knowledge, would in the future materially and adversely affect, (x) the ability of the Originator to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Originator taken as a whole;
(iv) There No consent, approval, authorization or order of any court or governmental agency or body is not pendingrequired for the execution, delivery and performance by the Originator of, or to its knowledgecompliance by the Originator with, threatened against it orthis Agreement or the consummation of the transactions contemplated hereby, in or if any such consent, approval, authorization or order is required, the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this AgreementOriginator has obtained the same;
(v) No Event of Default with respect to it has occurred The Originator is an approved seller/servicer for FNMA or FHLMC in good standing and is continuing and no such event or circumstance will occur as a result HUD approved mortgagee pursuant to Section 203 of its entering into or performing its obligations under this Agreement;the National Housing Act; and
(vi) It No litigation is acting for pending against the Originator that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Originator to service the Mortgage Loans or to perform any of its own accountother obligations hereunder in accordance with the terms hereof;
(b) The Seller hereby represents and warrants, as of the date hereof and as of the Closing Date, and its decision to enter into this Agreement covenants, that:
(i) The Seller is based upon its own judgmenta corporation, not duly organized and validly existing and in reliance upon good standing under the advice or recommendations laws of the other Party State of New York with full corporate power and authority to conduct its business as presently conducted by it is capable to the extent material to the consummation of assessing the merits of transactions contemplated herein. The Seller had the full corporate power and understandingauthority to acquire the Mortgage Loans. The Seller has the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and understands perform and accepts observe the terms, terms and conditions and risks of this Agreement;
(ii) This Agreement has been duly and validly authorized, executed and delivered by the Seller, all requisite corporate action having been taken, and (assuming the due authorization, execution and delivery hereof by the Purchaser and the Originator) constitutes the valid, legal and binding obligation of the Seller, enforceable in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, (B) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from securities laws liabilities;
(iii) No consent, approval, authorization or order of, registration or filing with, or notice to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(iv) Neither the sale of the Mortgage Loans to the Purchaser, nor the execution, delivery or performance of this Agreement by the Seller, conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the certificate of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property, or results or will result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(v) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans;
(vi) There is no litigation currently pending or, to the best of the Seller's knowledge, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates, the execution, delivery, performance or enforceability of this Agreement or that would result in a material adverse change in the financial condition of the Seller;
(vii) It Each Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the Purchaser or any assignee, transferee or designee of the Purchaser for each Mortgage Loan has been or will be, in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that (A) have been delivered (1) to the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not relied on any promises, representations, statements yet been returned or information of any kind whatsoever that (B) are not contained required to be delivered to the Purchaser or any assignee, transferee or designee of the Purchaser until 90 days following the Closing Date or such later date as provided in Section 4;
(viii) The transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in deciding effect in any relevant jurisdiction, except any as may have been complied with;
(ix) The Seller (A) is a solvent entity and is paying its debts as they become due and (B) after giving effect to enter into this Agreementthe transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due;
(x) The form of endorsement of each Mortgage Note satisfied the requirement, if any, of endorsement in order to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note; and each Assignment to be delivered hereunder is in recordable form and is sufficient to effect the assignment of and to transfer to the assignee thereunder the benefits of the assignor, as mortgagee or assignee thereof, under each Mortgage to which that Assignment relates;
(xi) The transfer of the Mortgage Loans to the Purchaser at the Closing Date will be treated by the Seller for financial accounting and reporting purposes as a sale of assets; and
(viiixii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants Immediately prior to the other Party thatsale of the Mortgage Loans to the Purchaser as herein contemplated, it has the Seller had good title to, and was the sole owner of, the Mortgage Loans, and such sale validly transfers the Mortgage Loans to the Purchaser free and clear of any pledge, lien, encumbrance or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitysecurity interest.
Appears in 1 contract
Samples: Assignment, Assumption and Recognition Agreement (Wilshire Real Estate Investment Trust Inc)
Representations, Warranties and Covenants. (a) On of the Effective DateMaster -------------------------------------------------------- Servicer. -------- The Master Servicer makes the following representations, each Party represents warranties and warrants covenants to the other Party that:Issuer on the date of this Agreement. The Master Servicer shall be deemed to have repeated the representations and warranties in clauses (1), (2), (6), (7), (8), (9) and (12) on the date the Notes are issued under the Indenture.
(1) The Master Servicer (i) It is duly organizedincorporated, validly existing existing, and in good standing under the laws of the jurisdiction of its formation;
in which it is incorporated; (ii) is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature and extent of its business and properties require due qualification and good standing; (iii) possesses all requisite authority, permits and power to conduct its business as contemplated by this Agreement including, without limitation, eligibility as a third-party servicer under the Act; and (iv) is in compliance with all applicable laws and regulations.
(2) The execution, execution and delivery and performance by the Master Servicer of this Agreement and the performance of its obligations hereunder (i) are within its powerscorporate power, (ii) have been duly authorized by all necessary corporate action, (iii) require no action by or filing with any governmental agency, except for any action or filing that has been taken or made on 7 Master Servicing Agreement or before the date of this Agreement; and (iv) do not violate any provision of its certificate of incorporation or bylaws.
(3) The Master Servicer will satisfy all of its obligations set forth in this Agreement, maintain in effect all qualifications required in order to service the Financed Student Loans and comply in all material respects with all requirements of law if a failure to comply would have a materially adverse effect on its ability to service the Financed Student Loans.
(4) The Master Servicer will not permit any rescission or cancellation of a Financed Student Loan except as ordered by a court or other government authority or as consented to by the Trust Eligible Lender Trustee and the Indenture Trustee, except that it may write off any delinquent Financed Student Loan if the remaining balance of the terms and conditions in its governing documents, any contracts to which it borrower's account is a party or any Applicable Laws;less than $50.
(iii5) This Agreement constitutes a legally valid and binding obligation enforceable against it The Master Servicer will not reschedule, revise, defer or otherwise compromise payments due on any Financed Student Loan except during any applicable interest only, deferral or forbearance periods or otherwise in accordance with its terms, subject to any Equitable Defenses;all applicable standards and requirements for servicing of the Financed Student Loans.
(iv6) There is not pendingAll financial statements of the Master Servicer delivered to the Issuer were prepared according to U.S. generally accepted accounting principles ("GAAP") consistently applied and present fairly, in all material respects, the financial condition, results of operations and cash flows of the Master Servicer as of, and for the portion of the fiscal year ending on their date or to its knowledge, threatened against it ordates (subject, in the case of Sellerfinancial statements other than annual ones, only to normal year-end adjustments).
(7) No event which could cause a material adverse effect on the Master Servicer's financial condition has occurred, and if such event shall occur, the Master Servicer shall promptly give the Issuer notice thereof.
(8) The Master Servicer is not subject to, or aware of the threat of, any of litigation that is reasonably likely to be determined adversely to it and that, if so adversely determined, would have a material adverse effect on its Related Entities, any legal proceeding that could materially adversely affect financial condition or its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing meet its obligations under this Agreement;
(vi) It is acting for its own accountAgreement and no outstanding or unpaid judgments against the Master Servicer exist, and its decision to enter into this Agreement is based upon its own judgmentif such event shall occur, not in reliance upon the advice or recommendations of Master Servicer shall promptly give the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementIssuer notice thereof.
(b9) On The Master Servicer has no knowledge of any basis upon which to believe that each Financed Student Loan (i) is not in compliance in all material respects with all laws and rules and regulations with respect to any Guarantee thereof, and (ii) does not conform to the Effective Dateapplicable requirements of eligibility for such Guarantee.
(10) The Master Servicer further agrees to maintain its servicing system so that it will continue to provide all services required under this Agreement to the extent such services 8 Master Servicing Agreement are not provided by one or more eligible third-party subservicers under the Act with adequate systems to perform such services.
(11) Until all Financed Student Loans serviced hereunder have been repaid in full, or paid as a claim by a Guaranty Agency, or transferred to another servicer, the Master Servicer agrees as follows:
(i) Each Party covenants The Master Servicer shall cause to be furnished to the Issuer its financial statements as the Issuer may reasonably request, including quarterly unaudited financial statements within thirty (30) days after the conclusion of each fiscal quarter, and annual financial statements within ninety (90) days after the end of each fiscal year audited by nationally recognized independent certified public accountants and such other Party thatinformation with respect to its business affairs, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; andassets, and liabilities as the Issuer may reasonably request.
(ii) If The Master Servicer shall maintain books, records and accounts necessary to prepare financial statements according to GAAP and maintain adequate internal financial controls.
(iii) The Master Servicer shall maintain all licenses, permits, and franchises necessary for its business.
(12) This Agreement will, upon execution and delivery by all parties thereto, constitute a legal and binding obligation of the Master Servicer, enforceable against the Master Servicer according to its terms. Upon the discovery of a breach of certain covenants that have a materially adverse effect on the Financed Student Loans, the Master Servicer will be obligated to purchase or substitute the adversely affected Financed Student Loan unless the breach is cured within the time period prescribed in Section 1.02(a) provides 10 hereof. Any breach that relates to compliance with the requirements of the Act or the applicable Guaranty Agency but that does not affect that Guaranty Agency's obligation to guarantee payment of a Financed Student Loan will not be considered to have a material adverse effect. The purchase or substitution and reimbursement obligations of the Master Servicer will constitute the sole remedy available to the Issuer for any uncured breach. The Master Servicer's purchase or substitution and reimbursement obligations are contractual obligations that the Generating Facility is Issuer may enforce, but the breach of these obligations will not constitute an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that event of default under the Generating Facility qualifies as an Existing Qualifying FacilityIndenture.
Appears in 1 contract
Samples: Master Servicing Agreement (Education Capital I LLC)
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each Seller represents and warrants to Administrative Agent and each other Buyer Entity in the other Party that:
Buyer Group as follows as of the Effective Date and as of the date of any transaction under any MSFTA and each Purchase Date (as defined in each Repurchase Agreement) for any Transaction (as defined in each Repurchase Agreement) under any Repurchase Agreement: (a) it has all requisite power to execute, deliver and perform its obligations under this Agreement; (b) subject to the entry of the DIP Orders with respect to Ditech and RMS, that this Agreement constitutes the legal, valid and binding obligation of such Seller, enforceable in accordance with its terms, subject (i) It is duly organizedas to the enforcement of remedies, validly existing to applicable bankruptcy, insolvency and in good standing under the similar laws of the jurisdiction of its formation;
affecting creditors’ rights generally and (ii) The executionto general principles of equity); (c) it is entering into this Agreement at arm’s length and not in reliance on any inducement or information other than as set forth in this Agreement; (d) this Agreement creates a valid, fully perfected security interest in the Margin (having the priority described in the DIP Orders), free and clear of any adverse claims, subject in the case of lien perfection to the execution and delivery of any necessary control agreement(s), filing of applicable UCC financing statements or entry of the Interim DIP Order; (e) the execution and delivery by such Seller and performance by such Seller of its obligations under this Agreement are within its powers, have been duly authorized by all necessary corporate action on the part of such Seller; (f) the execution and delivery by such Seller and performance by such Seller of its obligations under this Agreement do not and will not (i) subject to the entry of the DIP Orders with respect to Ditech and RMS, require any authorization, approval, consent, order, filing, or other action except such as has previously been obtained and is in full force and effect, (ii) violate, subject to the entry of the DIP Orders with respect to Ditech and RMS, any provision of applicable law, statue, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority (as defined in each Repurchase Agreement) applicable to such Seller, (iii) violate any provision of the terms and conditions organizational documents of such Seller, (iv) violate or result in its governing documentsa default under any provision of any indenture, any contracts material agreement, bond, note or other similar material instrument to which it such Seller is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There is not pending, by which such Seller or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entitiesproperties or assets are bound and that is either entered into after the Petition Date or with respect to which such Seller is obligated to comply during the pendency of its Case, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event violate or result in a default under any provision of Default with respect to it has occurred the RSA and is continuing (vi) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any properties or assets of such Seller (other than liens and no security interests granted by such event Seller pursuant this Agreement or circumstance any other DIP Warehouse Facility Agreement); and 8 2014057.06-NYCSR07A - MSW (g) such Seller will occur realize a direct economic benefit as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has transactions entered into this Agreement from time to time by the Buyer Entities in connection with the conduct of its business and it has Buyer Group under the capacity or ability to provide or receive the Power Product as contemplated by this AgreementGoverning Agreements.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Margin, Setoff and Netting Agreement
Representations, Warranties and Covenants. (a) On the Effective Date, each Party Each Issuer represents and warrants to the other Party that:
(i) It Such Issuer has full power and authority to execute, deliver and perform the terms and provisions of this Note.
(ii) All necessary approvals for the execution, delivery and performance of this Note by such Issuer have been obtained, and this Note has been duly executed and delivered by such Issuer and constitutes the legal and binding obligation of the Issuer, enforceable in accordance with its terms.
(iii) Such Issuer is a duly organized, organized and validly existing and corporation limited liability (as applicable) in good standing under the laws of Delaware or Florida (as applicable) and has the jurisdiction of power and authority to own its formation;
(ii) The execution, delivery property and performance of this Agreement are within its powers, have been duly authorized by all necessary action assets and do not violate any of to transact the terms and conditions business in its governing documents, any contracts to which it is a party or any Applicable Laws;
(iii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;engaged.
(iv) There is The execution and delivery by such Issuer of, and the performance of and compliance by such Issuer with, the terms and provisions of this Note, do not pending(i) contravene any applicable provision of any material law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality applicable to such Issuer, (ii) conflict with, or to its knowledgeresult in a breach of, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks provisions of, or constitute a default under, any material agreement or instrument to which such Issuer is a party or by which it or any of its property or assets is bound or (iii) violate any provision of the organizational documents of such Issuer.
(v) The execution and delivery by such Issuer of, and the performance of and compliance by such Issuer with, the terms and provisions of this Agreement;Note do not require any consent or approval of, registration or filing with, or any other action by, any governmental instrumentality, except for any filings with the United States Securities and Exchange Commission and such licenses, approvals, authorizations or consents as have been obtained or made and are in full force and effect.
(vi) All information disclosed by the Issuers in the perfection certificate delivered in connection with the indebtedness evidenced by this Note true and correct as of the date hereof in all material respects.
(vii) It has not relied on any promisesUpon the occurrence of an Event of Default and subsequent Holder’s demand, representationspromptly deliver to the Holder all promissory notes, statements drafts, trade acceptances, chattel paper, instruments or information documents of any kind whatsoever that title which are not contained Collateral in this Agreement in deciding tangible form, appropriately endorsed to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this AgreementHolder’s order.
(vii) Use its reasonable efforts to: (a) file with the Securities and Exchange Commission in a timely manner all reports and other documents required of Grandparents under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended; and (b) On the Effective Date:
(i) Each Party covenants furnish to the other Party thatHolder, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that so long as the Generating Facility is an Existing Qualifying FacilityHolder owns any Securities forthwith upon request, thenunless already available on EXXXX, Seller represents a copy of the most recently filed annual report of Grandparents, and warrants to Buyer that a copy of each filed quarterly and interim report of Grandparents filed since the Generating Facility qualifies as an Existing Qualifying Facilityfiling of the most recent annual report of Grandparents.
Appears in 1 contract
Samples: Convertible Promissory Note (GRANDPARENTS.COM, Inc.)
Representations, Warranties and Covenants. (a) On the Effective Date, Buyer and Seller each Party represents and warrants warrants, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, to the other Party that:
(i) It it is duly organizedauthorized to execute and deliver this Agreement, validly existing to enter into the Transactions contemplated hereunder and in good standing under the laws of the jurisdiction of to perform its formationobligations hereunder and has taken all necessary action to authorize such execution, delivery and performance;
(ii) The it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal);
(iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal);
(iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect; and
(v) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do the Transactions hereunder will not violate any of the terms and conditions in its governing documentslaw, ordinance, charter, by-law or rule applicable to it or any contracts to agreement by which it is bound or by which any of its assets are affected.
(b) Seller represents and warrants to Buyer, and shall on and as of the Purchase Date of any Transaction be deemed to represent and warrant, as follows:
(i) The documents disclosed by Seller to Buyer pursuant to this Agreement are either original documents or genuine and true copies thereof;
(ii) Seller, Originator and Guarantor are each a party separate and independent corporate entity from the Custodian, none of Seller, Originator or Guarantor owns a controlling interest in the Custodian either directly or through affiliates and no director or officer of any Applicable Lawsof them is also a director or officer of the Custodian;
(iii) This Agreement constitutes a legally valid None of the Purchase Price for any Mortgage Loan will be used either directly or indirectly to acquire any security, as that term is defined in Regulation T of the Regulations of the Board of Governors of the Federal Reserve System, and binding obligation enforceable against it in accordance with its terms, subject Seller has not taken any action that might cause any Transaction to violate any Equitable Defensesregulation of the Federal Reserve Board;
(iv) There is not pending, or Each Mortgage Loan was underwritten in accordance with the Underwriting Guidelines and no change to its knowledge, threatened against it or, in the case Underwriting Guidelines has occurred since the date of the last written revision to the Underwriting Guidelines was furnished to Buyer by Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event Seller has purchased the Mortgage Loans from Originator pursuant to a xxxx of Default with respect sale, a copy of which has been provided to it has occurred and is continuing and no such event or circumstance will occur as a result of its entering into or performing its obligations under this AgreementBuyer;
(vi) It is acting Seller shall be at the time it transfers to Buyer any Mortgage Loans for its own accountany Transaction the legal and beneficial owner of such Mortgage Loans, free of any lien, security interest, option or encumbrance; and
(vii) Seller used no selection procedures that identified the Mortgage Loans relating to a Transaction as being less desirable or valuable than other comparable assets in Seller’s portfolio on the related Purchase Date.
(c) Seller makes the representations and its decision warranties set forth at Exhibit C with respect to enter into the Mortgage Loans as of the related Purchase Date.
(d) Seller covenants with Buyer, from and after the date hereof, as follows:
(i) Seller shall immediately notify Buyer if an Event of Default shall have occurred;
(ii) Seller shall deliver to Buyer a current Loan Schedule with respect to all Mortgage Loans subject to this Agreement is based upon its own judgment, with such frequency as Buyer may require but in no event less frequently than weekly;
(iii) No Mortgage Loan shall be subject to this Agreement for more than one hundred and eighty (180) days in aggregate;
(iv) The aggregate outstanding principal amount of Mortgage Loans subject to the Agreement at any time that are Wet Mortgage Loans shall not in reliance upon the advice or recommendations exceed $100,000,000;
(v) Seller shall comply with all applicable provisions of the Custodial Agreement and the Underwriting Guidelines;
(vi) Seller shall promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to pending or future litigation involving Seller or Guarantor where the amount in controversy is in excess of $1,000,000 and the case is reasonably likely to be decided against Seller or Guarantor, as applicable; and (iv) any other Party developments which might materially and it is capable adversely affect the financial condition of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks of this AgreementSeller;
(vii) It With respect to Wet Mortgage Loans subject to this Agreement, Seller shall deliver the Mortgage Files no later than seven (7) Business Days after the related Purchase Date;
(viii) For each Mortgage Loan that is a Wet Mortgage Loan, Seller has obtained an insured closing letter issued by a title insurance company effective not relied on later than the closing date for such Mortgage Loan;
(ix) In the event that Buyer purchases a Mortgage Loan that is a Wet Mortgage Loan and the Wet Mortgage Loan is not originated by Originator for any promisesreason, representations, statements or information Seller shall return the funds constituting the Purchase Price for such Wet Mortgage Loan via wire transfer within twenty four (24) hours of any kind whatsoever Seller’s failure to complete the Wet Mortgage Loan;
(x) For all Mortgage Loans with Mortgages that are not contained in recorded into MERs, Seller agrees to take all actions necessary to cause MERs to provide to Buyer all reports that would customarily be provided to an Associate Member;
(xi) Notwithstanding any provision of this Agreement in deciding or the Custodial Agreement to enter into this Agreementthe contrary, any funds distributed for the funding of a Mortgage Loan through the Disbursement Account, shall constitute the Purchase Price for such Mortgage Loan; and
(viiixii) It has entered into this Agreement in connection Seller shall provide Buyer or its agents, with copies of all filings made by or on behalf of Guarantor or any entity that controls Guarantor, with the conduct of its business Securities and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreement.
(b) On the Effective Date:
(i) Each Party covenants Exchange Commission pursuant to the other Party thatSecurities Exchange Act of 1934, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facilityas amended, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facilitypromptly upon making such filings.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Representations, Warranties and Covenants. (a) On 5.1 As of the Effective Datedate of this Agreement, each Party the Company represents and warrants to the other Party that:Monitoring Agency that (which representations shall continue to be true and correct on each day during the currency of this Agreement):
(i) It this Agreement constitutes valid, legal and binding obligations on the Company and is duly organized, validly existing and enforceable against the Company in good standing under accordance with the laws of the jurisdiction of its formationterms hereof;
(ii) The the execution, delivery and performance of this Agreement are within its powers, have and any other document related hereto by it has been duly authorized by all necessary action authorised and do not violate and will not contravene any provisions of the terms and conditions in or constitute a default under (a) any law, regulation, judgement, decree or order of any governmental authority, (b) its governing organizational documents, or (c) any contracts other agreement or instrument or undertaking to which it is a party or which is binding on it or any Applicable Lawsof its assets;
(iii) This it has the requisite power to open and maintain the Proceeds Account and has taken all necessary corporate and other actions required to authorize the opening and maintenance thereof upon the terms referred to herein and the execution of all such documents as are necessary for the purpose thereof;
(iv) the Company shall carry out its duties/ responsibilities under this Agreement and complete all the formalities required to be completed by it under this Agreement, within the specified time limits specified in this Agreement and as required under Applicable Law;
(v) The Company shall ensure that the Net Proceeds are utilized for the purposes as set out in the Prospectus and Clause 2.1 of this Agreement and acknowledges that the Monitoring Agency shall not be liable for the use or application or viability of utilization by the Company of the Net Proceeds; and
(vi) the Company warrants that it has undertaken all reasonable due diligence in respect of the information disclosed/ to be disclosed with the Monitoring Agency, in terms of this Agreement and all such information is in all respects true, complete and correct. The Company warrants that it has the necessary legal rights and has obtained all consents necessary to disclose such information to the Monitoring Agency and that such information is not subject to any restrictions that would prevent Monitoring Agency’s use of such information in connection with its processes and services as a Monitoring Agency.
5.2 As of the date of this Agreement, the Monitoring Agency represents and warrants to the Company that (which representations shall continue to be true and correct on each day during the currency of this Agreement):
(i) this Agreement constitutes a legally valid valid, legal and binding obligation obligations on it and is enforceable against it in accordance with the terms hereof;
(ii) the execution, delivery and performance of this Agreement and any other document related hereto by it has been duly authorized and do not and will not contravene any provisions of, or constitute a default under (a) any law, regulation, judgement, decree or order of any governmental authority, (b) its termsorganisational documents, subject or (c) any other agreement or instrument or undertaking to which it is a party or which is binding on it or any Equitable Defensesof its assets;
(iii) it shall act and carry out its duties and responsibilities in relation to monitoring of the Net Proceeds within the specified time limits specified in this Agreement and as required under Applicable Law; and
(iv) There is not pending, or to its knowledge, threatened against it or, in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default with respect to it has occurred due authority and is continuing and no such event or circumstance will occur valid registration as a result required under Applicable Law to act as the monitoring agency for monitoring the use of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations of the other Party Net Proceeds and it is capable of assessing the merits of and understandingnot prohibited from acting as a monitoring agency by any judicial, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements regulatory or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementadministrative body.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Monitoring Agency Agreement
Representations, Warranties and Covenants. (a) On Omitted portions of this Exhibit 10.4.20 have been filed separately with the Effective DateCommission and are subject to a request for confidential treatment under Rule 24b-2
14.1 Each Party represents, each Party represents warrants and warrants covenants to the other Party that:
that (i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction performance by such Party of its formation;
(ii) The execution, delivery and performance of obligations under this Agreement are within will not result in a violation or breach of, and not conflict with or constitute a default under, its powersCertificate of Incorporation or other incorporation documents, have been duly authorized by all necessary action and do not violate corporate bylaws or any contract, commitment, agreement or other obligation to which such Party or any of the terms and conditions in its governing documents, any contracts to which it Affiliates is a party or by which any Applicable Laws;
of them is bound; and (iiiii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There there is not pending, no Action pending or to its knowledge, currently threatened against it or, in the case of Seller, or any of its Related EntitiesAffiliates which, any legal proceeding that could materially if adversely affect its ability determined, would restrict or limit such Party's right to perform under enter into this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event , transfer the rights or circumstance will occur as a result of its entering into or performing carry out its obligations under this Agreement;.
14.2 Neoprobe represents, warrants and covenants to USSC: (vi) It is acting for its own accounti)to the best of Neoprobe's knowledge and belief, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations as of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks date of this Agreement;
, Exhibit 14.2 attached hereto is a true and complete list of all contracts, commitments and agreements pursuant to which Neoprobe or its Affiliates owns, licenses or has any right, title or interest in intellectual property involving or relating to the RIGScan System (viicollectively, "Material IPRs"); (ii) It Neoprobe is, and, during the term of this Agreement, shall remain in compliance in all material respects with the Material IPRs; (iii) to the best of Neoprobe's knowledge and belief, as of the effective date of this Agreement, Neoprobe has not relied on any promisesreceived a notice of an Action by a third Person alleging a breach or violation of a Material IPR, representationsinfringement of a third Person's intellectual property rights involving or relating to a Material IPR or challenging the ownership, statements validity or information enforceability of any kind whatsoever that are not contained Material IPR; (iv) to the best of Neoprobe's knowledge, (aa) each Person which sublicenses a Material IPR to Neoprobe (collectively, "Licensors") is in this Agreement compliance in deciding all material respect with the related license (collectively, "Licenses") to enter into which such sublicense relates, and (bb) no Licensors has received a notice of an Action by a third Person alleging a breach or violation of a License, infringement of a third Person's intellectual rights involving or relating to the License, or challenging the ownership, validity or enforceability of a License or intellectual property covered thereby; and (v) Neoprobe is, and during the term of this Agreement; and
(viii) It has entered into , shall remain in compliance Omitted portions of this Agreement in connection Exhibit 10.4.20 have been filed separately with the conduct Commission and are subject to a request for confidential treatment under Rule 24b-2 **** Omitted and filed separately under Rule 24b-2 pursuant to which Neoprobe Corporation has requested Confidential Treatment of its business this information. 38 in all material respects with the terms set forth in that certain agreement entitled "Patent License Agreement--Exclusive" ("NCI Agreement") between the National Cancer Institute and it has Dow Chemical Company ("Dow") dated in January, 1993 to the capacity extent such terms are applicable to Neoprobe, or ability as to provide or receive which Neoprobe is bound, such that Neoprobe's intellectual property rights as sublicensee to the Power Product NCI Agreement are, and shall remain, exclusive, such terms being imposed upon Neoprobe pursuant to the terms of such NCI Agreement and as contemplated by sublicensee thereof pursuant to that certain agreement entitled "Technology Transfer Agreement" between Dow and Neoprobe dated July 29, 1992.
14.3 Promptly following the execution of this Agreement.
(b) On , the Effective Date:
parties shall discuss that certain existing agreement between Neoprobe and **** and Neoprobe Corporation ****. If following such discussion USSC shall desire that Neoprobe ****, USSC shall notify Neoprobe thereof and, in such event, Neoprobe shall cause **** to promptly ****. Notwithstanding the foregoing (i) Each Party covenants Neoprobe shall not be required to **** in its entirety in accordance with the foregoing but only as to the other Party that****, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Neoprobe's **** in accordance with the foregoing shall not be deemed a violation of Section 1.02(a14.2(ii) provides that set forth above, and (iii) as to any intellectual property owned by Neoprobe arising from the Generating Facility **** (collectively, "****"), USSC is an Existing Qualifying Facilityhereby granted the exclusive, thenworldwide right and license during the term of this Agreement to make, Seller represents have made, use and warrants sell products, and components and related accessories, which incorporate ****. The provisions of this Agreement relating to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityUSSC Royalty Products shall also be applicable to products incorporating ****.
Appears in 1 contract
Samples: License and Distributorship Agreement (Neoprobe Corp)
Representations, Warranties and Covenants. (a) On Omitted portions of this Exhibit 10.4.20 have been filed separately with the Effective DateCommission and are subject to a request for confidential treatment under Rule 24b-2
14.1 Each Party represents, each Party represents warrants and warrants covenants to the other Party that:
that (i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction performance by such Party of its formation;
(ii) The execution, delivery and performance of obligations under this Agreement are within will not result in a violation or breach of, and not conflict with or constitute a default under, its powersCertificate of Incorporation or other incorporation documents, have been duly authorized by all necessary action and do not violate corporate bylaws or any contract, commitment, agreement or other obligation to which such Party or any of the terms and conditions in its governing documents, any contracts to which it Affiliates is a party or by which any Applicable Laws;
of them is bound; and (iiiii) This Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(iv) There there is not pending, no Action pending or to its knowledge, currently threatened against it or, in the case of Seller, or any of its Related EntitiesAffiliates which, any legal proceeding that could materially if adversely affect its ability determined, would restrict or limit such Party's right to perform under enter into this Agreement;
(v) No Event of Default with respect to it has occurred and is continuing and no such event , transfer the rights or circumstance will occur as a result of its entering into or performing carry out its obligations under this Agreement;.
14.2 Neoprobe represents, warrants and covenants to USSC: (vi) It is acting for its own accounti)to the best of Neoprobe's knowledge and belief, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations as of the other Party and it is capable of assessing the merits of and understanding, and understands and accepts the terms, conditions and risks date of this Agreement;
, Exhibit 14.2 attached hereto is a true and complete list of all contracts, commitments and agreements pursuant to which Neoprobe or its Affiliates owns, licenses or has any right, title or interest in intellectual property involving or relating to the RIGScan System (viicollectively, "Material IPRs"); (ii) It Neoprobe is, and, during the term of this Agreement, shall remain in compliance in all material respects with the Material IPRs; (iii) to the best of Neoprobe's knowledge and belief, as of the effective date of this Agreement, Neoprobe has not relied on any promisesreceived a notice of an Action by a third Person alleging a breach or violation of a Material IPR, representationsinfringement of a third Person's intellectual property rights involving or relating to a Material IPR or challenging the ownership, statements validity or information enforceability of any kind whatsoever that are not contained Material IPR; (iv) to the best of Neoprobe's knowledge, (aa) each Person which sublicenses a Material IPR to Neoprobe (collectively, "Licensors") is in this Agreement compliance in deciding all material respect with the related license (collectively, "Licenses") to enter into which such sublicense relates, and (bb) no Licensors has received a notice of an Action by a third Person alleging a breach or violation of a License, infringement of a third Person's intellectual rights involving or relating to the License, or challenging the ownership, validity or enforceability of a License or intellectual property covered thereby; and (v) Neoprobe is, and during the term of this Agreement; and
(viii) It has entered into , shall remain in compliance Omitted portions of this Agreement in connection Exhibit 10.4.20 have been filed separately with the conduct Commission and are subject to a request for confidential treatment under Rule 24b-2 **** Omitted and filed separately under Rule 24b-2 pursuant to which Neoprobe Corporation has requested Confidential Treatment of its business this information. 38 in all material respects with the terms set forth in that certain agreement entitled "Patent License Agreement--Exclusive" ("NCI Agreement") between the National Cancer Institute and it has Dow Chemical Company ("Dow") dated in January, l993 to the capacity extent such terms are applicable to Neoprobe, or ability as to provide or receive which Neoprobe is bound, such that Neoprobe's intellectual property rights as sublicensee to the Power Product NCI Agreement are, and shall remain, exclusive, such terms being imposed upon Neoprobe pursuant to the terms of such NCI Agreement and as contemplated by sublicensee thereof pursuant to that certain agreement entitled "Technology Transfer Agreement" between Dow and Neoprobe dated July 29, l992.
14.3 Promptly following the execution of this Agreement.
(b) On , the Effective Date:
parties shall discuss that certain existing agreement between Neoprobe and **** and Neoprobe Corporation ****. If following such discussion USSC shall desire that Neoprobe ****, USSC shall notify Neoprobe thereof and, in such event, Neoprobe shall cause **** to promptly ****. Notwithstanding the foregoing (i) Each Party covenants Neoprobe shall not be required to **** in its entirety in accordance with the foregoing but only as to the other Party that****, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Neoprobe's **** in accordance with the foregoing shall not be deemed a violation of Section 1.02(a14.2(ii) provides that set forth above, and (iii) as to any intellectual property owned by Neoprobe arising from the Generating Facility **** (collectively, "****"), USSC is an Existing Qualifying Facilityhereby granted the exclusive, thenworldwide right and license during the term of this Agreement to make, Seller represents have made, use and warrants sell products, and components and related accessories, which incorporate ****. The provisions of this Agreement relating to Buyer that the Generating Facility qualifies as an Existing Qualifying FacilityUSSC Royalty Products shall also be applicable to products incorporating ****.
Appears in 1 contract
Samples: License and Distributorship Agreement (Neoprobe Corp)
Representations, Warranties and Covenants. 5.01 Each of the Vendors represent and warrant to the Purchaser (for itself and as trustee for the Companies (as the case may be)) to the intent that each of the following representations and warranties is accurate in all respects and not misleading at the date of this Agreement and that if for any reason there is any interval of time between the time of this Agreement and Completion, such representations and warranties will continue to be accurate in all respects and not misleading at all times subsequent to the date of this Agreement up to and including the Completion Date as if repeated on each such day immediately before Completion:
(a) On it is the Effective Datesole legal and beneficial owner of, each Party represents or otherwise have full authority, including all shareholder and/or regulatory authority, to sell, transfer or dispose of, the Sale Shares registered in its name;
(b) it is entitled to sell its Sale Shares free from any claims, equities, liens, charges and warrants to encumbrances (including without limitation any claims of the beneficiaries or other persons under any settlement or trust document or otherwise);
(c) this Agreement constitutes and the other Party thatdocuments executed by it which are to be delivered at Completion will, when executed, constitute binding obligations of it in accordance with their respective terms;
(d) the execution and delivery of, and the performance of its obligations under this Agreement will not:
(i) It is duly organized, validly existing and result in good standing under the laws a breach of any provision of the jurisdiction memorandum or articles of its formation;association (or other similar constitutional documents); or
(ii) The executionresult in a breach of, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documentsor constitute a default under, any contracts instrument to which it is a party or any Applicable Laws;by which it is bound; or
(iii) This Agreement constitutes result in a legally valid and binding obligation enforceable against breach of any order, judgment or decree of any court or governmental agency to which it in accordance with its terms, subject to any Equitable Defenses;is a party or by which it is bound.
(ive) There is not pendingit acknowledges that no action has been or will be taken with any relevant securities, governmental or to its knowledge, threatened against it or, regulatory authorities in the case of Seller, any of its Related Entities, any legal proceeding that could materially adversely affect its ability to perform under this Agreement;
(v) No Event of Default jurisdiction with respect to the execution, validity or performance of this Agreement and confirms that (where applicable) it has occurred obtained or complied with all authorizations and/or regulations of any relevant securities, governmental or regulatory authorities in connection with the execution, validity and is continuing performance of this Agreement.
5.02 The Vendors shall not (save only as may be necessary to give effect to this Agreement) do or allow and shall procure that no such event act or circumstance omission will occur before Completion which would constitute a material breach of any of the Warranties if they were given at Completion or which would make any of the Warranties materially inaccurate or misleading if they were so given.
5.03 In the event of it being found prior to Completion that any of the Warranties are materially untrue or incorrect, or in the event of any matter or thing arising or becoming known or being notified to the Purchaser which is materially inconsistent with any of the Warranties or in the event of the Vendors becoming unable or failing to do anything in any material respect required to be done by it at or before Completion, the Purchaser shall not be bound to complete the purchase of the Sale Shares and the Purchaser may by written notice rescind this Agreement without liability on its part. The right conferred upon the Purchaser by this Clause is in addition to and without prejudice to any other rights of the Purchaser (including any rights to claim damages or compensation from the Vendors by reason of any such breach or non-fulfilment) and failure to exercise it shall not constitute a waiver of any such rights.
5.04 The Vendors hereby jointly and severally undertake to indemnify and keep indemnified the Purchaser against any loss or liability suffered by the Purchaser as a result of its entering into or performing its obligations under this Agreement;
(vi) It is acting for its own account, and its decision to enter into this Agreement is based upon its own judgment, not in reliance upon the advice or recommendations connection with any breach of any of the other Party Warranties and it is capable of assessing against any reasonable costs and expenses incurred in connection therewith provided that the merits of and understanding, and understands and accepts the terms, conditions and risks of this Agreement;
(vii) It has not relied on any promises, representations, statements or information of any kind whatsoever that are not indemnity contained in this Agreement Clause shall be without prejudice to any other rights and remedies of the Purchaser in deciding relation to enter into this Agreement; and
(viii) It has entered into this Agreement in connection with the conduct of its business and it has the capacity or ability to provide or receive the Power Product as contemplated by this Agreementany such breach.
(b) On the Effective Date:
(i) Each Party covenants to the other Party that, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(ii) If Section 1.02(a) provides that the Generating Facility is an Existing Qualifying Facility, then, Seller represents and warrants to Buyer that the Generating Facility qualifies as an Existing Qualifying Facility.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Shares (Xinhua Finance Media LTD)
