Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (c) Seller has obtained all required approvals and certifications that the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 3 contracts
Samples: Renewable Power Purchase Agreement, Renewable Power Purchase Agreement, Renewable Power Purchase Agreement
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have has obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordinglyCommission][PSC]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (c) Seller has obtained all required applicable certifications and/or approvals and certifications that for the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 2 contracts
Samples: Renewable Power Purchase Agreement, Power Purchase Agreement
Seller Covenants. From the Agreement Date until the Closing, Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: will:
(a) [prior use its best efforts to commencement protect the Acquired Assets, cooperate with Buyer concerning protection of construction intellectual property rights and customer relationships relating to the Acquired Assets and take such actions as Buyer may reasonably request relating to protection of such assets, and effect no transfer, sale, assignment, lease, license or Encumbrance of or on any of the Facility Seller shall have obtained an approved and valid report Acquired Assets (other than product sales in the ordinary course of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; Seller’s business);
(b) Seller has submitted to the Transmission Provider engage in no transactions materially inconsistent with its representations and the Transmission Provider has accepted the completed interconnection request for the Facility; and warranties in this Agreement;
(c) use its best efforts to obtain, before the Closing, the written consent of all third parties necessary for Seller has obtained to consummate the Acquisition and to transfer and assign the Acquired Assets to Buyer;
(d) to obtain all consents, approvals, and authorizations that are required approvals and certifications under any applicable law, rule or regulation;
(e) notify Buyer promptly upon receipt of any communication or legal process which commences or threatens litigation against Seller, its business, or any of the Acquired Assets;
(f) provide Buyer, whether before or after the Closing, with any further documents that Buyer reasonably requests relating to the Facility is Acquired Assets or the Business or to carry into effect the Acquisition;
(g) pay any sales, use or other taxes as a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance result of the Acquisition;
(h) upon the representations and warranties set forth Closing, cease use of the intellectual property included in this section, and in the event of a breach or failure of or relating to the Acquired Assets without Buyer's prior written consent; and
(i) from the date hereof until the Closing, preserve and operate its business in the ordinary course and will not enter into any transaction or agreement or take any action out of the foregoing covenants and warranties, including without limitation for being false ordinary course or misleading in enter into any respect, then this Agreement will terminate upon Buyer providing transaction or make any commitment involving an expense or capital expenditure by Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any the Acquired Assets, in excess of the foregoing covenants and warranties$10,000, notwithstanding anything else to the contrary in this Agreementwithout Buyer’s prior written consent, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vital Living Inc), Asset Purchase Agreement (Nutracea)
Seller Covenants. Each Seller hereby covenants and agrees with TFI as follows:
(a) Except as hereinafter provided, such Seller will keep in full effect its existence, rights and franchises as a corporation, and will obtain and preserve its qualification to Buyer that it do business as a foreign corporation in each jurisdiction in which such qualification is or shall comply with all of be necessary to protect the requirements of the Act validity and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date enforceability of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction or any of the Facility Contracts and to perform its duties hereunder. Any person into which such Seller may be merged or consolidated, or to whom such Seller has sold substantially all of its assets, or any corporation resulting from any merger, conversion or consolidation to which such Seller shall be a party, or any Person succeeding to the business of such Seller shall be the successor of such Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(c) hereof shall have been breached, (x) such successor executes an agreement of assumption, in form reasonably satisfactory to the Trustee, to perform every obligation under this Agreement, (y) such Seller shall have obtained an approved and valid report of proposed construction or delivered to TFI a certificate of public convenience an officer of such Seller and necessity an Opinion of Counsel each stating that such consolidation, merger, or succession and such agreement of assumption complies with this Section 4.01 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) such Seller shall have delivered to TFI an Opinion of Counsel either (1) stating that, in the Facility from opinion of such counsel, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the [Commission] if not required delete interest of TFI in the Contracts and renumber accordingly]; reciting the details of such filings, or (2) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(b) Neither such Seller has submitted nor any of the directors, officers, employees or agents of such Seller shall be under any liability to TFI, the Transmission Provider and Trustee or the Transmission Provider has accepted Holders of Notes for any action taken or for refraining from the completed interconnection request for the Facility; and taking of any action in good
(c) Such Seller has obtained will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary or which the Trustee may deem appropriate to preserve the security interests and liens described in Section 3.01(a)(viii) hereof and are reasonably satisfactory in form and substance to TFI and the Issuer.
(d) Such Seller will not change its name, identity or corporate structure in any manner that would, could, or might make any financing statement or continuation statement misleading within the meaning of section 9-402(7) of the UCC, unless it shall have given TFI, the Issuer and the Trustee at least 30 days' prior written notice thereof.
(e) Such Seller will give TFI, the Issuer and the Trustee at least 30 days' prior written notice of any relocation of its principal executive office if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement.
(f) Such Seller will duly fulfill all required approvals obligations on its part to be fulfilled under or in connection with each Contract, will not change or modify the terms of the Contracts (and certifications shall prevent any third-party originator that still owns any Contract from changing or modifying the terms of any such Contract) except as expressly permitted by the terms of the Transaction Documents and will do nothing to impair the rights of TFI, the Issuer or the Trustee in the Assets. In the event that the Facility rights of such Seller under any Contract or any guaranty of the related Obligor's obligations under any Contract are not assignable to TFI or the Issuer, such Seller will enforce such rights on behalf of TFI or the Issuer; the Seller is not aware of any such inability to assign any Contracts.
(g) Such Seller will comply, in all material respects, with all material acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Assets or any part thereof; provided, however, that such Seller may contest any act, regulation, order, decree or direction in any reasonable manner which
(h) Such Seller will advise TFI, the Issuer and the Trustee promptly, in reasonable detail, of the occurrence of any breach by such Seller following discovery by such Seller of such breach of any of its representations, warranties and covenants contained herein.
(i) Such Seller will execute or endorse, acknowledge, and deliver to TFI, the Issuer and the Trustee from time to time such schedules, confirmatory assignments, conveyances, and other reassurances or instruments and take such further similar actions relating to the Assets, and the rights covered by the Transaction Documents, as TFI, the Issuer or the Trustee may reasonably request to preserve and maintain title to the Assets and the rights of the Trustee and the Holders of Notes therein against the claims of all persons and parties.
(j) Trendwest agrees to indemnify, defend and hold TFI harmless from and against any and all loss, liability, damage, judgment, claim, deficiency or expense (including interest, penalties, reasonable attorney's fees and amounts paid in settlement) that is caused by (i) a Qualifying Facility material breach at any time by any Seller of its representations, warranties and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any material information furnished by any Seller which is set forth in any schedule delivered hereunder, being untrue in any material respect when any such representation was made or schedule delivered, provided that Trendwest shall not have any liability with respect to a representation or warranty as to any specific Contract, Receivable or the related Credits other than to purchase such Contract or substitute for such Contract in accordance with Section 3.03 hereof unless such breach of representation or warranty is the result of a Seller's fraud, negligence, bad faith or willful misconduct. Trendwest shall also indemnify the Issuer, the Trustee and the Servicer for any cost or expenses incurred by them in the enforcement of this Agreement. The obligations of Trendwest under this Section 4.01(j) shall be considered to have been relied upon by TFI and shall survive the execution, delivery and performance of this Agreement, regardless of any investigation made by or on behalf of TFI, until termination of the Indenture. If Trendwest has made any indemnity payments pursuant to this Section 4.01(j) and thereafter the recipient collects any of such amounts from FERCothers, such party will promptly repay the amount collected to Trendwest, without interest.
(k) Such Seller will do nothing to disturb or impair the acquisition hereunder by TFI of all of such Seller's right, title and interest in the Assets or the Issuer's rights, title or interest in the Purchased Assets.
(l) Such Seller (i) will (A) maintain its books and records separate from the books and records of TFI and (B) maintain bank accounts separate from those of TFI and (ii) will not (x) take, prior to the complete payment of the Notes, any action that would cause the dissolution or liquidation of TFI, (y) guarantee (directly or
(m) Such Seller shall notify TFI, the Issuer and the Trustee promptly after becoming aware of any Lien on any Asset.
(n) On each date as of which Trendwest substitutes a Substitute Contract in accordance with Section 3.03 hereof, Trendwest shall provide to TFI a supplement to this Agreement substantially in the form of Annex A hereto subjecting such Contract to the provisions hereof and providing with respect to such Substitute Contract the information required in the Contract Schedule.
(o) The annual financial statements of such Seller will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with generally accepted accounting principles. The financial statements of such Seller agrees and acknowledges TFI will also disclose that Xxxxx has entered into the assets of TFI are not available to pay creditors of such Seller. The resolutions, agreements and other instruments underlying the Transaction Documents will be continuously maintained by such Seller as official records.
(p) Such Seller will, at its own cost and expense, (i) retain the Electronic Ledger as a master record of the Contracts and the related Credits and copies of all documents relating to each Contract (other than the original executed Contracts) as custodian for the Issuer and other Persons, if any, with interests in the Contracts and the related Credits and (ii) mark xxx Contracts and the Electronic Ledger to the effect that the Contracts and such Seller's interest in the related Credits have been acquired by TFI, that the Contracts and the related Receivables subsequently have been transferred by TFI to the Issuer and a security interest in the related Credits have been granted by TFI to the Issuer and that such Receivables, security interests and rights have been pledged, transferred and assigned to the Trustee by the Issuer pursuant to the Indenture.
(q) Such Seller will perform the transactions contemplated by this Agreement in reliance upon the representations and warranties set forth in this section, and a manner that is consistent with TFI's ownership interest in the event Assets (prior to the conveyance of a breach or failure any part of or such interest to the Issuer pursuant to the Sale Agreement). Such Seller will respond to all third party inquiries confirming the transfer of the Assets to TFI and of the Purchased Assets to the Issuer.
(r) Such Seller shall immediately transfer to the Servicer for deposit in the Clearing Account any payment it receives relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this AgreementAssets.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc), Receivables Purchase Agreement (Trendwest Resorts Inc)
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have has obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordinglyCommission][PSC]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (c) Seller has obtained all required applicable certifications and/or approvals and certifications that for the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (cb) Seller has obtained all required applicable certifications and/or approvals and certifications that for the Facility is a Qualifying Facility from FERC; and (c) either of the following conditions have been met (i) Seller has received a System Impact Study Report from the Transmission Provider as defined in article 4.3 of the Interconnection Standards and has returned the signed Facilities Study Agreement to the Company together with any required payment or financial security required therein in accordance with the Interconnection Standards; or (ii) Transmission Provider has not delivered a completed System Impact Study Report to Seller within 365 days after Seller has submitted the completed interconnection request for the Facility as referenced in Section 6.2(a) and where either of the following has occurred: (1) the Transmission Provider commenced a System Impact Study of the Facility upon receipt of Seller’s completed interconnection request, or (2) the Facility was initially designated as interdependent with more than one other interconnection customer under the Interconnection Standards and 365 days have passed since Seller executed a System Impact Study Agreement (as defined in the Interconnection Standards). Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations covenants and warranties set forth above in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Covenants. Each Seller hereby covenants and agrees with TFI as follows:
(a) Except as hereinafter provided, such Seller will keep in full effect its existence, rights and franchises as a corporation or limited liability company, as applicable, and will obtain and preserve its qualification to Buyer that it do business as a foreign corporation or limited liability company, as applicable, in each jurisdiction in which such qualification is or shall comply with all of be necessary to protect the requirements of the Act validity and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date enforceability of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction or any of the Facility Contracts and to perform its duties hereunder. Any person into which such Seller may be merged or consolidated, or to whom such Seller has sold substantially all of its assets, or any corporation resulting from any merger, conversion or consolidation to which such Seller shall be a party, or any Person succeeding to the business of such Seller shall be the successor of such Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(c) hereof shall have been breached, (x) such successor executes an agreement of assumption, in form reasonably satisfactory to the Trustee, to perform every obligation under this Agreement, (y) such Seller shall have obtained an approved and valid report of proposed construction or delivered to TFI a certificate of public convenience an officer of such Seller and necessity an Opinion of Counsel each stating that such consolidation, merger, or succession and such agreement of assumption complies with this Section 4.01 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) such Seller shall have delivered to TFI an Opinion of Counsel either (1) stating that, in the Facility from opinion of such counsel, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the [Commission] if not required delete interest of TFI in the Contracts and renumber accordingly]; reciting the details of such filings, or (2) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(b) Neither such Seller has submitted nor any of the members, directors, officers, employees or agents of such Seller (and, with respect to the Transmission Provider Prior Issuer, of the members of such Seller) shall be under any liability to TFI, the Trustee or the Holders of Notes for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment not involving recklessness or negligence; provided, however, that this provision shall not protect such Seller against any breach of warranties or representations made herein, or failure to perform its obligations in strict compliance with this Agreement, or any liability which would otherwise be imposed by reason of any breach of the terms and conditions of this Agreement. Such Seller, and any member, director, officer, employee or agent of such Seller (and, with respect to the Transmission Provider has accepted Prior Issuer, of the completed interconnection request for members of such Seller), may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Such Seller shall not be under any obligation to appear in, prosecute, or defend any legal action that is not incidental to its obligations as the Facility; seller of the Assets under this Agreement and that in its opinion may involve it in any expense or liability.
(c) Such Seller has obtained will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary or which the Trustee may deem appropriate to preserve the security interests and liens described in Section 3.01(a)(viii) hereof and are reasonably satisfactory in form and substance to TFI and the Issuer.
(d) Such Seller will not change its name, identity or corporate structure in any manner that would, could, or might make any financing statement or continuation statement misleading within the meaning of section 9-402(7) of the UCC, unless it shall have given TFI, the Issuer and the Trustee at least 30 days' prior written notice thereof.
(e) Such Seller will give TFI, the Issuer and the Trustee at least 30 days' prior written notice of any relocation of its principal executive office if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement.
(f) Such Seller will duly fulfill all required approvals obligations on its part to be fulfilled under or in connection with each Contract, will not change or modify the terms of the Contracts (and certifications shall prevent any third-party originator that still owns any Contract from changing or modifying the terms of any such Contract) except as expressly permitted by the terms of the Transaction Documents and will do nothing to impair the rights of TFI, the Issuer or the Trustee in the Assets. In the event that the Facility rights of such Seller under any Contract or any guaranty of the related Obligor's obligations under any Contract are not assignable to TFI or the Issuer, such Seller will enforce such rights on behalf of TFI or the Issuer; the Seller is not aware of any such inability to assign any Contracts.
(g) Such Seller will comply, in all material respects, with all material acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Assets or any part thereof; provided, however, that such Seller may contest any act, regulation, order, decree or direction in any reasonable manner which shall not materially and adversely affect the rights of TFI, the Issuer or the Trustee in the Assets.
(h) Such Seller will advise TFI, the Issuer and the Trustee promptly, in reasonable detail, of the occurrence of any breach by such Seller following discovery by such Seller of such breach of any of its representations, warranties and covenants contained herein.
(i) Such Seller will execute or endorse, acknowledge, and deliver to TFI, the Issuer and the Trustee from time to time such schedules, confirmatory assignments, conveyances, and other reassurances or instruments and take such further similar actions relating to the Assets, and the rights covered by the Transaction Documents, as TFI, the Issuer or the Trustee may reasonably request to preserve and maintain title to the Assets and the rights of the Trustee and the Holders of Notes therein against the claims of all persons and parties.
(j) Trendwest agrees to indemnify, defend and hold TFI harmless from and against any and all loss, liability, damage, judgment, claim, deficiency or expense (including interest, penalties, reasonable attorney's fees and amounts paid in settlement) that is caused by (i) a Qualifying Facility material breach at any time by any Seller of the representations, warranties and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any material information furnished by any Seller which is set forth in any schedule delivered hereunder, being untrue in any material respect when any such representation was made or schedule delivered, provided that Trendwest shall not have any liability with respect to a representation or warranty as to any specific Contract, Receivable or the related Credits other than to purchase such Contract or substitute for such Contract in accordance with Section 3.03 hereof unless such breach of representation or warranty is the result of a Seller's fraud, negligence, bad faith or willful misconduct. Trendwest shall also indemnify the Issuer, the Trustee and the Servicer for any cost or expenses incurred by them in the enforcement of this Agreement. The obligations of Trendwest under this Section 4.01(j) shall be considered to have been relied upon by TFI and shall survive the execution, delivery and performance of this Agreement, regardless of any investigation made by or on behalf of TFI, until termination of the Indenture. If Trendwest has made any indemnity payments pursuant to this Section 4.01(j) and thereafter the recipient collects any of such amounts from FERCothers, such party will promptly repay the amount collected to Trendwest, without interest.
(k) Such Seller will do nothing to disturb or impair the acquisition hereunder by TFI of all of such Seller's right, title and interest in the Assets or the Issuer's rights, title or interest in the Purchased Assets.
(l) Such Seller (i) will (A) maintain its books and records separate from the books and records of TFI and (B) maintain bank accounts separate from those of TFI and (ii) will not (x) take, prior to the complete payment of the Notes, any action that would cause the dissolution or liquidation of TFI, (y) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of TFI or (z) institute against TFI, or join any other person in instituting against TFI, any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar laws.
(m) Such Seller shall notify TFI, the Issuer and the Trustee promptly after becoming aware of any Lien on any Asset.
(n) On each date as of which Trendwest substitutes a Substitute Contract in accordance with Section 3.03 hereof, Trendwest shall provide to TFI a supplement to this Agreement substantially in the form of Annex A hereto subjecting such Contract to the provisions hereof and providing with respect to such Substitute Contract the information required in the Contract Schedule.
(o) The annual financial statements of such Seller will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with generally accepted accounting principles. The financial statements of such Seller agrees and acknowledges TFI will also disclose that Xxxxx has entered into the assets of TFI are not available to pay creditors of such Seller. The resolutions, agreements and other instruments underlying the Transaction Documents will be continuously maintained by such Seller as official records.
(p) Such Seller will, at its own cost and expense, (i) retain the Electronic Ledger as a master record of the Contracts and the related Credits and copies of all documents relating to each Contract (other than the original executed Contracts) as custodian for the Issuer and other Persons, if any, with interests in the Contracts and the related Credits and (ii) mark the Contracts xxx the Electronic Ledger to the effect that the Contracts and such Seller's interest in the related Credits have been acquired by TFI, that the related Receivables subsequently have been transferred by TFI to the Issuer and a security interest in the related Contracts and the related Credits have been granted by TFI to the Issuer and that such Receivables, security interests and rights have been pledged, transferred and assigned to the Trustee by the Issuer pursuant to the Indenture.
(q) Such Seller will perform the transactions contemplated by this Agreement in reliance upon the representations and warranties set forth in this section, and a manner that is consistent with TFI's ownership interest in the event Assets (prior to the conveyance of a breach or failure any part of or such interest to the Issuer pursuant to the Sale Agreement). Such Seller will respond to all third party inquiries confirming the transfer of the Assets to TFI and of the Purchased Assets to the Issuer.
(r) Such Seller shall immediately transfer to the Servicer for deposit in the Clearing Account any payment it receives relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this AgreementAssets.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Seller Covenants. Each Seller hereby covenants and agrees with the Issuer as follows:
(a) Except as hereinafter provided, such Seller will keep in full effect its existence, rights and franchises as a corporation or limited liability company, as applicable, and will obtain and preserve its qualification to Buyer that it do business as a foreign corporation or limited liability company, as applicable, in each jurisdiction in which such qualification is or shall comply with all of be necessary to protect the requirements of the Act validity and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date enforceability of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction or any of the Facility Contracts and to perform its duties hereunder. Any person into which such Seller may be merged or consolidated, or to whom such Seller has sold substantially all of its assets, or any corporation resulting from any merger, conversion or consolidation to which such Seller shall be a party, or any Person succeeding to the business of such Seller shall be the successor of such Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(c) hereof shall have been breached, (x) such successor executes an agreement of assumption, in form reasonably satisfactory to the Trustee, to perform every obligation under this Agreement, (y) such Seller shall have obtained an approved and valid report of proposed construction or delivered to the Issuer a certificate of public convenience an officer of such Seller and necessity an Opinion of Counsel each stating that such consolidation, merger, or succession and such agreement of assumption complies with this Section 4.01 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) such Seller shall have delivered to the Facility from Issuer an Opinion of Counsel either (1) stating that, in the [Commission] if not required delete opinion of such counsel, all financing statements and renumber accordingly]; continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Issuer in the Contracts and reciting the details of such filings, or (2) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(b) Neither such Seller has submitted nor any of the members, directors, officers, employees or agents of such Seller (and, with respect to TRI I, of the members of such Seller) shall be under any liability to the Transmission Provider Issuer, the Trustee or the Holders of Notes for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment not involving recklessness or negligence; provided, however, that this provision shall not protect such Seller against any breach of warranties or representations made herein, or failure to perform its obligations in strict compliance with this Agreement, or any liability which would otherwise be imposed by reason of any breach of the terms and conditions of this Agreement. Such Seller, and any member, director, officer, employee or agent of such Seller (and, with respect to TRI I, of the Transmission Provider has accepted members of such Seller), may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Such Seller shall not be under any obligation to appear in, prosecute, or defend any legal action that is not incidental to its obligations as the completed interconnection request for seller of the Facility; Assets under this Agreement and that in its opinion may involve it in any expense or liability.
(c) Such Seller has obtained will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary or which the Trustee may deem appropriate to preserve the security interests and liens described in Section 3.01(a)(viii) hereof and are reasonably satisfactory in form and substance to the Issuer.
(d) Such Seller will not change its name, identity or corporate structure in any manner that would, could, or might make any financing statement or continuation statement misleading within the meaning of section 9-402(7) of the UCC, unless it shall have given the Issuer and the Trustee at least 30 days' prior written notice thereof.
(e) Such Seller will give the Issuer and the Trustee at least 30 days' prior written notice of any relocation of its principal executive office if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement.
(f) Such Seller will duly fulfill all required approvals obligations on its part to be fulfilled under or in connection with each Contract, will not change or modify the terms of the Contracts (and certifications shall prevent any third-party originator that still owns any Contract from changing or modifying the terms of any such Contract) except as expressly permitted by the terms of the Transaction Documents and will do nothing to impair the rights of the Issuer or the Trustee in the Assets. In the event that the Facility rights of such Seller under any Contract or any guaranty of the related Obligor's obligations under any Contract are not assignable to the Issuer, such Seller will enforce such rights on behalf of the Issuer; the Seller is not aware of any such inability to assign any Contracts.
(g) Such Seller will comply, in all material respects, with all material acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Assets or any part thereof; provided, however, that such Seller may contest any act, regulation, order, decree or direction in any reasonable manner which shall not materially and adversely affect the rights of the Issuer or the Trustee in the Assets.
(h) Such Seller will advise the Issuer and the Trustee promptly, in reasonable detail, of the occurrence of any breach by such Seller following discovery by such Seller of such breach of any of its representations, warranties and covenants contained herein.
(i) Such Seller will execute or endorse, acknowledge, and deliver to the Issuer and the Trustee from time to time such schedules, confirmatory assignments, conveyances, and other reassurances or instruments and take such further similar actions relating to the Assets, and the rights covered by the Transaction Documents, as the Issuer or the Trustee may reasonably request to preserve and maintain title to the Assets and the rights of the Trustee and the Holders of Notes therein against the claims of all persons and parties.
(j) Trendwest agrees to indemnify, defend and hold the Issuer harmless from and against any and all loss, liability, damage, judgment, claim, deficiency or expense (including interest, penalties, reasonable attorney's fees and amounts paid in settlement) that is caused by (i) a Qualifying Facility material breach at any time by any Seller of the representations, warranties and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any material information furnished by any Seller which is set forth in any schedule delivered hereunder, being untrue in any material respect when any such representation was made or schedule delivered, provided that Trendwest shall not have any liability with respect to a representation or warranty as to any specific Contract, Receivable or the related Vacation Credits other than to purchase such Contract or substitute for such Contract in accordance with Section 3.03 hereof unless such breach of representation or warranty is the result of a Seller's fraud, negligence, bad faith or willful misconduct. Trendwest shall also indemnify the Issuer, the Trustee and the Servicer for any cost or expenses incurred by them in the enforcement of this Agreement. The obligations of Trendwest under this Section 4.01(j) shall be considered to have been relied upon by the Issuer and shall survive the execution, delivery and performance of this Agreement, regardless of any investigation made by or on behalf of the Issuer, until termination of the Indenture. If Trendwest has made any indemnity payments pursuant to this Section 4.01(j) and thereafter the recipient collects any of such amounts from FERCothers, such party will promptly repay the amount collected to Trendwest, without interest.
(k) Such Seller will do nothing to disturb or impair the acquisition hereunder by the Issuer of all of such Seller's right, title and interest in the Assets.
(l) Such Seller (i) will (A) maintain its books and records separate from the books and records of the Issuer and (B) maintain bank accounts separate from those of the Issuer and (ii) will not (x) take, prior to the complete payment of the Notes, any action that would cause the dissolution or liquidation of the Issuer, (y) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of the Issuer or (z) institute against the Issuer, or join any other person in instituting against the Issuer, any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar laws.
(m) Such Seller shall notify the Issuer and the Trustee promptly after becoming aware of any Lien on any Asset.
(n) On each date as of which Trendwest substitutes a Substitute Contract in accordance with Section 3.03 hereof, Trendwest shall provide to the Issuer a supplement to this Agreement substantially in the form of Annex A hereto subjecting such Contract to the provisions hereof and providing with respect to such Substitute Contract the information required in the Contract Schedule.
(o) The annual financial statements of such Seller will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with generally accepted accounting principles. The financial statements of such Seller agrees and acknowledges the Issuer will also disclose that Xxxxx has entered into the assets of the Issuer are not available to pay creditors of such Seller. The resolutions, agreements and other instruments underlying the Transaction Documents will be continuously maintained by such Seller as official records.
(p) Such Seller will, at its own cost and expense, (i) retain the Electronic Ledger as a master record of the Contracts and the related Vacation Credits and copies of all documents relating to each Contract (other than the original executed Contracts) as custodian for the Issuer and other Persons, if any, with interests in the Contracts and the related Vacation Credits and (ii) xxxx the Contracts and the Electronic Ledger to the effect that the Contracts and such Seller's interest in the related Vacation Credits have been acquired by the Issuer and a security interest in the related Contracts and the related Vacation Credits have been granted by such Seller to the Issuer and that such Receivables, security interests and rights have been pledged, transferred and assigned to the Trustee by the Issuer pursuant to the Indenture.
(q) Such Seller will perform the transactions contemplated by this Agreement in reliance upon a manner that is consistent with the representations and warranties set forth in this section, and Issuer's ownership interest in the event Assets. Such Seller will respond to all third party inquiries confirming the transfer of a breach or failure of or the Assets to the Issuer.
(r) Such Seller shall immediately transfer to the Servicer for deposit in the Clearing Account any payment it receives relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this AgreementAssets.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Seller Covenants. Each Seller hereby covenants and agrees with the Issuer as follows:
(a) Except as hereinafter provided, such Seller will keep in full effect its existence, rights and franchises as a corporation and will obtain and preserve its qualification to Buyer that it do business as a foreign corporation in each jurisdiction in which such qualification is or shall comply with all of be necessary to protect the requirements of the Act validity and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date enforceability of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction or any of the Facility Loan Documents and to perform its duties hereunder. Any person into which such Seller may be merged or consolidated, or to whom such Seller has sold substantially all of its assets, or any corporation resulting from any merger, conversion or consolidation to which such Seller shall be a party, or any Person succeeding to the business of such Seller shall be the successor of such Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(c) hereof shall have been breached, (x) such successor executes an agreement of assumption, in form reasonably satisfactory to the Trustee, to perform every obligation under this Agreement, (y) such Seller shall have obtained an approved and valid report of proposed construction or delivered to the Issuer a certificate of public convenience an officer of such Seller and necessity an Opinion of Counsel each stating that such consolidation, merger, or succession and such agreement of assumption complies with this Section 4.01 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) such Seller shall have delivered to the Facility from Issuer an Opinion of Counsel either (1) stating that, in the [Commission] if not required delete opinion of such counsel, all financing statements and renumber accordingly]; continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Issuer in the Contracts and reciting the details of such filings, or (2) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(b) Neither such Seller has submitted nor any of the members, directors, officers, employees or agents of such Seller shall be under any liability to the Transmission Provider Issuer, the Trustee or the Holders of Notes for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment not involving recklessness or negligence; provided, however, that this provision shall not protect such Seller against any breach of warranties or representations made herein, or failure to perform its obligations in strict compliance with this Agreement, or any liability which would otherwise be imposed by reason of any breach of the terms and conditions of this Agreement. Such Seller, and any member, director, officer, employee or agent of such Seller, may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Such Seller shall not be under any obligation to appear in, prosecute, or defend any legal action that is not incidental to its obligations as the Transmission Provider has accepted seller of the completed interconnection request for the Facility; Assets under this Agreement and that in its opinion may involve it in any expense or liability.
(c) Such Seller has obtained will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary or which the Trustee may deem appropriate to preserve the security interests and liens described in Section 3.01(a)(viii) hereof and are reasonably satisfactory in form and substance to the Issuer.
(d) Such Seller will not change its name, identity or corporate structure in any manner that would, could, or might make any financing statement or continuation statement misleading within the meaning of section 9-402(7) of the UCC, unless it shall have given the Issuer and the Trustee at least 30 days' prior written notice thereof.
(e) Such Seller will give the Issuer and the Trustee at least 30 days' prior written notice of any relocation of its principal executive office if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement.
(f) Such Seller will duly fulfill all required approvals obligations on its part to be fulfilled under or in connection with each Loan Document, will not change or modify the terms of the Loan Documents (and certifications shall prevent any third-party originator that still owns any Loan Document from changing or modifying the terms of any such Contract) except as expressly permitted by the terms of the Transaction Documents and will do nothing to impair the rights of the Issuer or the Trustee in the Assets. In the event that the Facility rights of such Seller under any Loan Document or any guaranty of the related Obligor's obligations under any Loan Document are not assignable to the Issuer, such Seller will enforce such rights on behalf of the Issuer; the Seller is not aware of any such inability to assign any Loan Documents.
(g) Such Seller will comply, in all material respects, with all material acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Assets or any part thereof; provided, however, that such Seller may contest any act, regulation, order, decree or direction in any reasonable manner which shall not materially and adversely affect the rights of the Issuer or the Trustee in the Assets.
(h) Such Seller will advise the Issuer and the Trustee promptly, in reasonable detail, of the occurrence of any breach by such Seller following discovery by such Seller of such breach of any of its representations, warranties and covenants contained herein.
(i) Such Seller will execute or endorse, acknowledge, and deliver to the Issuer and the Trustee from time to time such schedules, confirmatory assignments, conveyances, and other reassurances or instruments and take such further similar actions relating to the Assets, and the rights covered by the Transaction Documents, as the Issuer or the Trustee may reasonably request to preserve and maintain title to the Assets and the rights of the Trustee and the Holders of Notes therein against the claims of all persons and parties.
(j) Trendwest agrees to indemnify, defend and hold the Issuer harmless from and against any and all loss, liability, damage, judgment, claim, deficiency or expense (including interest, penalties, reasonable attorney's fees and amounts paid in settlement) that is caused by (i) a Qualifying Facility material breach at any time by any Seller of the representations, warranties and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any material information furnished by any Seller which is set forth in any schedule delivered hereunder, being untrue in any material respect when any such representation was made or schedule delivered, provided that Trendwest shall not have any liability with respect to a representation or warranty as to any specific Loan Document, Receivable or the Related Security other than to purchase such Contract or substitute for such Contract in accordance with Section 3.03 hereof unless such breach of representation or warranty is the result of a Seller's fraud, negligence, bad faith or willful misconduct. Trendwest shall also indemnify the Issuer, the Trustee and the Servicer for any cost or expenses incurred by them in the enforcement of this Agreement. The obligations of Trendwest under this Section 4.01(j) shall be considered to have been relied upon by the Issuer and shall survive the execution, delivery and performance of this Agreement, regardless of any investigation made by or on behalf of the Issuer, until termination of the Indenture. If Trendwest has made any indemnity payments pursuant to this Section 4.01(j) and thereafter the recipient collects any of such amounts from FERCothers, such party will promptly repay the amount collected to Trendwest, without interest.
(k) Such Seller will do nothing to disturb or impair the acquisition hereunder by the Issuer of all of such Seller's right, title and interest in the Assets.
(l) Such Seller (i) will (A) maintain its books and records separate from the books and records of the Issuer and (B) maintain bank accounts separate from those of the Issuer and (ii) will not (x) take, prior to the complete payment of the Notes, any action that would cause the dissolution or liquidation of the Issuer, (y) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of the Issuer or (z) institute against the Issuer, or join any other person in instituting against the Issuer, any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar laws.
(m) Such Seller shall notify the Issuer and the Trustee promptly after becoming aware of any Lien on any Asset, and Trendwest shall not allow to suffer any lien on any asset.
(n) On each date as of which Trendwest substitutes a Substitute Contract in accordance with Section 3.03 hereof, Trendwest shall provide to the Issuer a supplement to this Agreement substantially in the form of Annex A hereto subjecting such Substitute Contract to the provisions hereof and providing with respect to such Substitute Contract the information required in the Contract Schedule.
(o) The annual financial statements of such Seller will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with generally accepted accounting principles. The financial statements of such Seller agrees and acknowledges the Issuer will also disclose that Xxxxx has entered into the assets of the Issuer are not available to pay creditors of such Seller. The resolutions, agreements and other instruments underlying the Transaction Documents will be continuously maintained by such Seller as official records.
(p) Such Seller will, at its own cost and expense, (i) retain the Electronic Ledger as a master record of the Loan Documents and the Related Security and copies of all documents relating to each Contract (other than the original executed Contracts) as custodian for the Issuer and other Persons, if any, with interests in the Loan Documents and the Related Security and (ii) mark xxx Contracts and the Electronic Ledger to the effect that the Loan Documents and such Seller's interest in the Related Security have been acquired by the Issuer and a security interest in the Loan Documents and the Related Security have been granted by such Seller to the Issuer and that such security interests and rights have been pledged, transferred and assigned to the Trustee by the Issuer pursuant to the Indenture.
(q) Such Seller will perform the transactions contemplated by this Agreement in reliance upon a manner that is consistent with the representations and warranties set forth in this section, and Issuer's ownership interest in the event Assets. Such Seller will respond to all third party inquiries confirming the transfer of a breach or failure of or the Assets to the Issuer.
(r) Such Seller shall immediately transfer to the Servicer for deposit in the Clearing Account any payment it receives relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this AgreementAssets.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (cb) Seller has obtained all required approvals and certifications that the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.. ACCEPTED FOR PROCESSING - 2024 January 29 2:53 PM - SCPSC - 2024-39-E - Page 15 of 75
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Selleragrees that, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of between the Effective Date of this Agreement and throughout the Term Closing Date without the prior written consent of this Agreement that: Purchaser:
(a) [prior to commencement Except in the Ordinary Course of construction Business (defined on Exhibit V), neither Seller nor any of the Facility other Seller shall have obtained an approved and valid report of proposed construction Parties will make any commitments to any governmental authority, utility company, school board, church or certificate of public convenience and necessity for other religious body, or any homeowners association, or any other organization, group or individual which would be binding upon Purchaser or the Facility from Property after the [Commission] if Closing without Purchaser’s prior written approval, which approval will not required delete and renumber accordingly]; be unreasonably withheld;
(b) Neither Seller has submitted nor any of the other Seller Parties will create or permit to be created any additional title encumbrances, whether monetary or otherwise, with respect to the Transmission Provider Real Property without Purchaser’s prior written approval, which approval will not be unreasonably withheld (except that Seller may, without necessity of obtaining any consent or approval from Purchaser, encumber the Real Property with the Permitted Exceptions and with any other encumbrances which Seller causes to be released at or prior to the Transmission Provider has accepted the completed interconnection request for the Facility; and Closing under this Agreement);
(c) Seller has obtained will make deposits in the Reserve Accounts to the extent required in accordance with the requirements of the applicable Loan Documents and Contracts, will only withdraw funds from the Reserve Accounts to the extent permitted by the applicable Loan Documents and Contracts and will only use withdrawn funds for the purposes permitted by the applicable Loan Documents and Contracts and will give written notice to Purchaser within two (2) business days after making any such withdrawal;
(d) Seller will promptly upon obtaining written notice of same, notify Purchaser of any instituted or proposed foreclosure proceeding, condemnation action or other litigation or additional improvement lien or assessment with respect to the Property or any portion thereof;
(e) Seller will promptly notify Purchaser of any material damage to or destruction of the Real Property or any portion thereof; and
(f) Neither Seller nor any of the other Seller Parties will alter or amend, or make application to alter or amend, in any way, the zoning or any other governmental approval and permit applicable to the Property, without the prior written consent of Purchaser, which consent will not be unreasonably conditioned, withheld or delayed.
(g) Seller shall not before or after Closing expressly and voluntarily release or modify any Warranties and Guaranties (defined in Exhibit V), if any, except with the prior written consent of Purchaser.
(h) Seller shall pay all premiums on, and shall not cancel or voluntarily allow to expire, and shall maintain in full force and effect, all of Seller’s Insurance Policies unless such policy is replaced, without any lapse of coverage, by another policy or policies providing coverage at least as extensive as the policy or policies being replaced.
(i) Seller covenants and agrees with Purchaser that, between the Effective Date and the Closing Date:
(i) Subject to the restrictions contained herein, Seller shall operate and maintain the Real Property in substantially the same manner in which Seller operated and maintained the Real Property prior to the execution of this Agreement, so as to keep the Real Property in good condition, reasonable wear and tear excepted.
(ii) Seller shall maintain its books of account and records in the usual, regular and ordinary manner, in accordance with sound accounting principles applied on a basis consistent with the basis used in keeping its books in prior years.
(iii) Seller shall maintain in full force and effect, and not cause or permit a default by Seller under (with or without the giving of any required approvals notice and/or lapse of time) the Xxxxxxx Loan or the Hotel Operating Agreement.
(iv) Seller shall use and certifications that operate the Facility is Real Property in compliance with Applicable Laws and the requirements of the Loan Documents, the Hotel Operating Agreement and Insurance Policies in all material respects.
(v) Except as otherwise permitted hereby, Seller shall not take any action or fail to take action the result of which would have a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement material adverse effect on the physical condition of the Property or Purchaser’s ability to continue the operation thereof after the date of Closing in reliance upon substantially the same manner as presently conducted, or which would cause any of the representations and warranties set forth of Seller provided elsewhere in this sectionAgreement to be untrue as of Closing in any material respect.
(vi) Seller shall not fail to maintain the Improvements and those items of the Personalty furniture, fixtures and equipment (including, but not limited to, the mechanical systems, plumbing, electrical, wiring, appliances, fixtures, heating, air conditioning and ventilating equipment, elevators, boilers, equipment, roofs, structural members and furnaces) (referred to as “FF&E”) in substantially the same condition as they are as of Effective Date, reasonable wear and tear excepted.
(vii) Seller shall not permit the items of the Personalty that constitutes inventory for the operation of the Hotel in the event of Hotel Master Unit to be diminished other than as a breach or failure of or relating to any result of the foregoing covenants ordinary and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any necessary operation of the foregoing covenants Hotel by Seller.
(viii) Seller shall not remove or cause or permit to be removed any part or portion of the Improvements without the express written consent of Purchaser unless the same is replaced, prior to Closing, with similar items of at least equal suitability, quality and warrantiesvalue, notwithstanding anything else free and clear of any liens or security interests other than the Xxxxxxx Loan.
(ix) Seller shall not remove or cause or permit to be removed any part FF&E without the contrary express written consent of Purchaser unless the same is replaced, prior to Closing, in this accordance with the Hotel Operating Agreement, free and clear of any liens or security interests other than the Xxxxxxx Loan.
(x) Seller shall promptly advise Purchaser of any litigation, arbitration or administrative hearing concerning or affecting the Property of which Seller obtains actual knowledge.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Stratus Properties Inc)
Seller Covenants. Each Seller hereby covenants and agrees with the Issuer as follows:
(a) Except as hereinafter provided, such Seller will keep in full effect its existence, rights and franchises as a corporation and will obtain and preserve its qualification to Buyer that it do business as a foreign corporation in each jurisdiction in which such qualification is or shall comply with all of be necessary to protect the requirements of the Act validity and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date enforceability of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction or any of the Facility Loan Documents and to perform its duties hereunder. Any person into which such Seller may be merged or consolidated, or to whom such Seller has sold substantially all of its assets, or any corporation resulting from any merger, conversion or consolidation to which such Seller shall be a party, or any Person succeeding to the business of such Seller shall be the successor of such Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(c) hereof shall have been breached, (x) such successor executes an agreement of assumption, in form reasonably satisfactory to the Trustee, to perform every obligation under this Agreement, (y) such Seller shall have obtained an approved and valid report of proposed construction or delivered to the Issuer a certificate of public convenience an officer of such Seller and necessity an Opinion of Counsel each stating that such consolidation, merger, or succession and such agreement of assumption complies with this Section 4.01 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) such Seller shall have delivered to the Facility from Issuer an Opinion of Counsel either (1) stating that, in the [Commission] if not required delete opinion of such counsel, all financing statements and renumber accordingly]; continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Issuer in the Contracts and reciting the details of such filings, or (2) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(b) Neither such Seller has submitted nor any of the members, directors, officers, employees or agents of such Seller shall be under any liability to the Transmission Provider Issuer, the Trustee or the Holders of Notes for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment not involving recklessness or negligence; provided, however, that this provision shall not protect such Seller against any breach of warranties or representations made herein, or failure to perform its obligations in strict compliance with this Agreement, or any liability which would otherwise be imposed by reason of any breach of the terms and conditions of this Agreement. Such Seller, and any member, director, officer, employee or agent of such Seller, may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Such Seller shall not be under any obligation to appear in, prosecute, or defend any legal action that is not incidental to its obligations as the Transmission Provider has accepted seller of the completed interconnection request for the Facility; Assets under this Agreement and that in its opinion may involve it in any expense or liability.
(c) Such Seller has obtained will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary or which the Trustee may deem appropriate to preserve the security interests and liens described in Section 3.01(a)(viii) hereof and are reasonably satisfactory in form and substance to the Issuer.
(d) Such Seller will not change its name, identity or corporate structure in any manner that would, could, or might make any financing statement or continuation statement misleading within the meaning of sections 9-506 and 9-507 of the UCC, unless it shall have given the Issuer and the Trustee at least 30 days' prior written notice thereof.
(e) Such Seller will give the Issuer and the Trustee at least 30 days' prior written notice of any relocation of its principal executive office if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement.
(f) Such Seller will duly fulfill all required approvals obligations on its part to be fulfilled under or in connection with each Loan Document, will not change or modify the terms of the Loan Documents (and certifications shall prevent any third party originator that still owns any Loan Document from changing or modifying the terms of any such contract) except as expressly permitted by the terms of the Transaction Documents and will do nothing to impair the rights of the Issuer or the Trustee in the Assets. In the event that the Facility rights of such Seller under any Loan Document or any guaranty of the related Obligor's obligations under any Loan Document are not assignable to the Issuer, such Seller will enforce such rights on behalf of the Issuer; the Seller is not aware of any such inability to assign any Loan Documents.
(g) Such Seller will comply, in all material respects, with all material acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Assets or any part thereof; provided, however, that such Seller may contest any act, regulation, order, decree or direction in any reasonable manner which shall not materially and adversely affect the rights of the Issuer or the Trustee in the Assets.
(h) Such Seller will advise the Issuer and the Trustee promptly, in reasonable detail, of the occurrence of any breach by such Seller following discovery by such Seller of such breach of any of its representations, warranties and covenants contained herein.
(i) Such Seller will execute or endorse, acknowledge, and deliver to the Issuer and the Trustee from time to time such schedules, confirmatory assignments, conveyances, and other reassurances or instruments and take such further similar actions relating to the Assets, and the rights covered by the Transaction Documents, as the Issuer or the Trustee may reasonably request to preserve and maintain title to the Assets and the rights of the Trustee and the Holders of Notes therein against the claims of all persons and parties.
(j) Trendwest agrees to indemnify, defend and hold the Issuer harmless from and against any and all loss, liability, damage, judgment, claim, deficiency or expense (including interest, penalties, reasonable attorney's fees and amounts paid in settlement) that is caused by (i) a Qualifying Facility material breach at any time by any Seller of the representations, warranties and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any material information furnished by any Seller which is set forth in any schedule delivered hereunder, being untrue in any material respect when any such representation was made or schedule delivered, provided that Trendwest shall not have any liability with respect to a representation or warranty as to any specific Loan Document, Receivable or the Related Security other than to purchase such Contract or substitute for such Contract in accordance with Section 3.03 hereof unless such breach of representation or warranty is the result of a Seller's fraud, negligence, bad faith or willful misconduct. Trendwest shall also indemnify the Issuer, the Trustee and the Servicer for any cost or expenses incurred by them in the enforcement of this Agreement. The obligations of Trendwest under this Section 4.01(j) shall be considered to have been relied upon by the Issuer and shall survive the execution, delivery and performance of this Agreement, regardless of any investigation made by or on behalf of the Issuer, until termination of the Indenture. If Trendwest has made any indemnity payments pursuant to this Section 4.01(j) and thereafter the recipient collects any of such amounts from FERCothers, such party will promptly repay the amount collected to Trendwest, without interest.
(k) Such Seller will do nothing to disturb or impair the acquisition hereunder by the Issuer of all of such Seller's right, title and interest in the Assets.
(l) Such Seller (i) will (A) maintain its books and records separate from the books and records of the Issuer and (B) maintain bank accounts separate from those of the Issuer and (ii) will not (x) take, prior to the complete payment of the Notes, any action that would cause the dissolution or liquidation of the Issuer, (y) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of the Issuer or (z) institute against the Issuer, or join any other person in instituting against the Issuer, any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar laws.
(m) Such Seller shall notify the Issuer and the Trustee promptly after becoming aware of any Lien on any Asset, and Trendwest shall not allow to suffer any lien on any asset.
(n) On each date as of which Trendwest substitutes a Substitute Contract in accordance with Section 3.03 hereof, Trendwest shall provide to the Issuer a supplement to this Agreement substantially in the form of Annex A hereto subjecting such Substitute Contract to the provisions hereof and providing with respect to such Substitute Contract the information required in the Contract Schedule.
(o) The annual financial statements of such Seller will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with generally accepted accounting principles. The financial statements of such Seller agrees and acknowledges the Issuer will also disclose that Xxxxx has entered into the assets of the Issuer are not available to pay creditors of such Seller. The resolutions, agreements and other instruments underlying the Transaction Documents will be continuously maintained by such Seller as official records.
(p) Such Seller will, at its own cost and expense, (i) retain the Electronic Ledger as a master record of the Loan Documents and the Related Security and copies of all documents relating to each Contract (other than the original executed Contracts) as custodian for the Issuer and other Persons, if any, with interests in the Loan Documents and the Related Security and (ii) xxxx the Contracts and the Electronic Ledger to the effect that the Loan Documents and such Seller's interest in the Related Security have been acquired by the Issuer and a security interest in the Loan Documents and the Related Security have been granted by such Seller to the Issuer and that such security interests and rights have been pledged, transferred and assigned to the Trustee by the Issuer pursuant to the Indenture.
(q) Such Seller will perform the transactions contemplated by this Agreement in reliance upon a manner that is consistent with the representations and warranties set forth in this section, and Issuer's ownership interest in the event Assets. Such Seller will respond to all third party inquiries confirming the transfer of a breach or failure of or the Assets to the Issuer.
(r) Such Seller shall immediately transfer to the Servicer for deposit in the Clearing Account any payment it receives relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this AgreementAssets.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall have obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (cb) Seller has obtained all required applicable certifications and/or approvals and certifications that for the Facility is a Qualifying Facility from FERC; and (c) either of the following conditions have been met (i) Seller has received a System Impact Study Report from the Transmission Provider as defined in article 4.3 of the Interconnection Standards and has returned the signed Facilities Study Agreement to the Company together with any required payment or financial security required therein in accordance with the Interconnection Standards; or (ii) Transmission Provider has not delivered a completed System Impact Study Report to Seller within 365 days after Seller has submitted the completed interconnection request for the Facility as referenced in Section 6.2(a) and where either of the following has occurred: (1) the Transmission Provider commenced a System Impact Study of the Facility upon receipt of Seller’s completed interconnection request, or (2) the Facility was initially designated as interdependent with more than one other interconnection customer under the Interconnection Standards and 365 days have passed since Seller executed a System Impact Study Agreement (as defined in the Interconnection Standards). Seller agrees and acknowledges that Xxxxx has Buyex xxx entered into this Agreement in reliance upon the representations covenants and warranties set forth above in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Sellerthat, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement: Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (a) [the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 00-00-000, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law; The Facility is, or will qualify prior to commencement the Commercial Operation Date, as an ERR. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law; Seller’s execution of this Agreement will not violate PUC §2821(d); Seller will deliver any certificates required pursuant to Public Utilities Code; Seller will own and operate the Facility for the duration of the Delivery Period, and will deliver the product free and clear to Buyer at the delivery point, and hold the rights to all of the Product; Seller will not convey, transfer, allocate, designate, award, report or otherwise provide any or all of the Product, or any portion thereof, or any benefits derived therefrom, to any party other than Buyer; Unless the Parties to this Agreement have entered into an Excess Sale transaction (as described in Section 2.3 and 2.3.2), Seller will not start-up or operate the Facility per instruction of or for the benefit of any third party, except as required by other Laws; Product will be conveyed only to Buyer; The construction of the Facility shall comply with all Laws, including applicable state and local laws, building standards, and interconnection requirements. GENERAL CONDITIONS Facility Care, Interconnection and Transmission Service. Seller shall have obtained an approved execute a Small Generator Interconnection Agreement with Buyer’s Generation Interconnection Services Department, pay for, and valid report of proposed construction or certificate of public convenience be responsible for designing, installing, operating, and necessity for maintaining the Facility from the [Commission] if not required delete in accordance with all applicable laws and renumber accordingly]; (b) regulations and shall comply with all applicable Buyer, CAISO, CPUC and FERC tariff provisions, including applicable interconnection and metering requirements. Seller has submitted shall also comply with any modifications, amendments or additions to the Transmission Provider applicable tariff and protocols. During the Transmission Provider has accepted the completed interconnection request for the Facility; Delivery Term, Seller shall arrange and (c) Seller has obtained all required approvals and certifications that the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless pay independently for any breach or failure relating and all necessary costs under any interconnection agreement with Buyer. To make deliveries to any of the foregoing covenants Buyer, Seller must maintain an interconnection agreement with Buyer in full force and warranties, notwithstanding anything else to the contrary in this Agreementeffect.
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Covenants. Seller covenants to Buyer that it shall comply with all of the requirements of the Act and other Requirements of Law applicable to Seller, the Facility, and/or Seller’s obligations under the Agreement. Without limiting the generality of the foregoing Seller represents and warrants to Buyer as of the Effective Date of this Agreement and throughout the Term of this Agreement that: (a) [prior to commencement of construction of the Facility Seller shall hasshall have obtained an approved and valid report of proposed construction or certificate of public convenience and necessity for the Facility from the [Commission] if not required delete and renumber accordingly]; (b) Seller has submitted to the Transmission Provider and the Transmission Provider has accepted the completed interconnection request for the Facility; and (c) Seller has obtained all required applicablerequired approvals and certifications that and/or approvals forthat the Facility is a Qualifying Facility from FERC. Seller agrees and acknowledges that Xxxxx has entered into this Agreement in reliance upon the representations and warranties set forth in this section, and in the event of a breach or failure of or relating to any of the foregoing covenants and warranties, including without limitation for being false or misleading in any respect, then this Agreement will terminate upon Buyer providing Seller with thirty (30) day’s written notice unless such breach or failure has been cured before the end of such thirty (30) day period. Seller will indemnify and hold Buyer harmless for any breach or failure relating to any of the foregoing covenants and warranties, notwithstanding anything else to the contrary in this Agreement.
Appears in 1 contract
Samples: Renewable Power Purchase Agreement
