Additional Seller Representations and Warranties. Each of the Sellers hereby, severally and not jointly, represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing Date: (i) If the Seller is Washington Mutual Bank, the Seller is a federal savings association, duly organized, validly existing and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States. (ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms. (iii) No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement. (iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject. (v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder. (vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD. (vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder. (viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 2 contracts
Sources: Mortgage Loan Purchase and Sale Agreement, Mortgage Loan Purchase and Sale Agreement (WaMu Asset Acceptance Corp.)
Additional Seller Representations and Warranties. Each of the Sellers hereby, severally and not jointly, The Seller hereby represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such the Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing Date:
(i) If the Seller is Washington Mutual Bank, the The Seller is a federal savings associationcorporation, duly organized, validly existing and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws State of the United StatesDelaware.
(ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter certificate of incorporation or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 2 contracts
Sources: Mortgage Loan Purchase and Sale Agreement (WaMu Asset Acceptance Corp.), Mortgage Loan Purchase and Sale Agreement (WaMu Asset Acceptance Corp.)
Additional Seller Representations and Warranties. Each (a) As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing DateSCE that:
(i) If Seller is/ is not {SCE note: select applicable option}an entity formed solely to engage in the Seller is Washington Mutual Bankdevelopment, the Seller is a federal savings association, duly organized, validly existing construction and in good standing under the laws operation of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is Project (a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.“Special Purpose Entity”)
(ii) The If the Project utilizes Energy Storage, Seller has all licenses necessary provided to carry on its business as now being conducted and is licensedSCE a list of services that Seller currently provides to SCE or to any other entity using the Storage Unit(s), qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and addition to the extent necessary Product delivered to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to SCE under this Agreement.
(ivb) The consummation As of the transactions contemplated Initial Delivery Date, Seller represents and warrants to SCE that the Project, and each Storage Unit (if any) included within the Project:
(i) has a remaining design life that is at least equal to the number of years required for the Project to operate until the end of the Term in accordance with Prudent Electrical Practices, as attested by an Independent Engineer;
(ii) is incremental capacity to the [SCE note: insert applicable circuit/substation]; and
(c) On each day on which Project Security in the form of cash is held by SCE under this Agreement, including without limitation Seller hereby represents and warrants that:
(i) Seller has good title to and is the transfer sole owner of such Project Security;
(ii) Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and assignment perfected first priority continuing security interest therein, free of the Mortgage Loans any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and
(iii) Seller is not and will not become a party to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of otherwise be bound by any agreement, other than this Agreement, are which restricts in any manner the ordinary course rights of business any present or future holder of any of the Project Security with respect hereto.
(d) On the Project Completion Date, the Initial Delivery Date, and each day Seller provides information to SCE or updates Exhibit B, Seller hereby represents and will not warrants that: (i) result the information contained in the breach of any term or provision of the charter or by-laws of the Seller, Exhibit B is correct and accurate and (ii) result in Seller has provided SCE with true and correct, up-to-date copies of all documents, if any, related to the breach interconnection of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subjectProject.
(ve) There is no action, suit, proceeding or investigation pending or, to the best As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider or by any Customer that is part of the Project that the disease designated COVID-19 or the related virus designated SARS-CoV-2, or any mutation or variant thereof, have caused, or are reasonably likely to cause, a delay in the construction of the Project or the delivery of materials necessary to complete the Project, in each case that would cause the Initial Project Completion Date to be later than the Expected Project Completion Date. [SCE Note: retain or remove as circumstances warrant.]
(f) Seller is not and has not been a party to any current, pending, threatened or resolved enforcement action of any government agency, or any consent decree or settlement with any governmental agency or private person or entity regarding any failure in Seller’s knowledgedata security safeguards, threatenedor otherwise regarding information privacy or security. Seller further represents that it has read and understood the Cyber Requirements, against and that Seller is fully compliant with the Cyber Requirements. Seller whichfurther warrants that, either throughout the term of the Agreement and as required in any one instance or in Section 14.01(h) (“Survival”), Seller will continue to comply fully with the aggregate, is likely, in the Cyber Requirements.
(g) All of Seller’s judgmentpersonnel, to resultsubcontractors and independent contractors involved with the Project have the requisite qualifications, education, experience, technical certifications training and education degrees provide the Product in any material impairment of a competent, workmanlike manner in accordance with Applicable Laws, Prudent Electrical Practices, and the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity provisions of this Agreement or including the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunderCyber Requirements.
(vih) The Seller is a U.S. Department also makes the additional representations and warranties (if any) set forth in Section 9.02 of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUDAttachment 1.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 2 contracts
Sources: Distributed Energy Resource Purchase and Sale Agreement, Distributed Energy Resource Purchase and Sale Agreement
Additional Seller Representations and Warranties. Each As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to SCE that: Seller ☐ is/ ☐ is not {SCE Note: select applicable option} an entity formed solely to engage in the Purchaser as development, construction and operation of the Project (a “Special Purpose Entity”); Seller has provided SCE with true and correct, up-to-date copies of all of the Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE; and Seller has considered long-term risks to the Project associated with climate change. As of the Effective Date and throughout the Delivery Period, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any portion of the generating capacity of the Project to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE for any Showing Month of the Delivery Period, except to the extent such Seller as benefits are conferred on another entity pursuant to an order of the CPUC or at the direction of SCE. On each Closing Date day on which Project Security in the form of cash is held by SCE under this Agreement, Seller hereby represents and warrants that: Seller has good title to and is the sole owner of such Project Security; Upon the posting of Project Security by Seller sells Mortgage Loans hereunderto SCE, SCE shall have a valid and perfected first priority continuing Security Interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the rights of any present or future holder of any of the Project Security with respect hereto. On the Initial Delivery Date and on each day Seller provides information to such Mortgage LoansSCE or updates Exhibit B, as of such Closing Date:
Seller hereby represents and warrants that: (i) If the Seller information contained in Exhibit B is Washington Mutual Bank, the Seller is a federal savings association, duly organized, validly existing correct and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing accurate and in good standing under the laws of the United States.
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses documents, if any, related to the interconnection of the Project. As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider that the disease designated COVID-19 or the related virus designated SARS-CoV-2 have caused, or are reasonably likely to cause, a delay in the construction of the Project or the delivery of materials necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in complete the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a partyProject, in each case assuming due authorization, execution and delivery by that would cause the Purchaser, evidence Initial Delivery Date to be later than the valid, binding and enforceable obligations Expected Initial Delivery Date. As of the SellerInitial Delivery Date, subject Seller represents and warrants to SCE that the Project: was not installed or operational at any time before the Effective Date; and has a remaining design life of at least [#] years after the Initial Delivery Date as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws attested by an Independent Engineer; {SCE Note: design life should extend at least until end of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorizationDelivery Period, or order longer based on accounting considerations.} Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement
Additional Seller Representations and Warranties. Each (a) As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing DateSCE that:
(i) If Seller is/ is not {SCE note: select applicable option}an entity formed solely to engage in the Seller is Washington Mutual Bankdevelopment, the Seller is a federal savings association, duly organized, validly existing construction and in good standing under the laws operation of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is Project (a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.“Special Purpose Entity”); and
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE.
(b) As of the Effective Date and, if applicable, as of each time that a Generating Facility is added to the Project, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any Product to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent necessary such benefits are conferred on another entity pursuant to ensure an order of the enforceability CPUC or at the direction of SCE.
(c) On each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver day on which Project Security is held by SCE under this Agreement, Seller hereby represents and warrants that:
(i) Seller has good title to and is the Term Sheetsole owner of such Project Security, and the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of the covenants and agreements of this Agreement do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including the Project Security, other than the security interests and liens created under this Agreement;
(ii) Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and
(iii) Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Seller and the consummation rights of any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto.
(d) On the Initial Delivery Date and on each day Seller provides information to SCE or updates Exhibit B, includingSeller hereby represents and warrants that: (i) the information contained in Exhibit B is correct and accurate and (ii) Seller has provided SCE with true and correct, without limitationup-to-date copies of all documents, if any, related to the repurchase obligations herein containedinterconnection of the Project.
(e) As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider that the disease designated COVID-19 or the related virus designated SARS-CoV-2 have been duly and validly authorized. This Agreementcaused, or will cause, a delay in construction of the Term Sheet, Project or the Confidential Pricing Supplement and all other documents and instruments contemplated hereby delivery of materials necessary to which complete the Seller is a partyProject, in each case assuming due authorization, execution and delivery by that would cause the Purchaser, evidence Initial Delivery Date to be later than the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its termsExpected Initial Delivery Date.
(iiif) No consent, approval, authorization, or order Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement
Additional Seller Representations and Warranties. Each of the Sellers hereby, severally and not jointly, The Seller hereby represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such the Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing Date:
(i) If the Seller is Washington Mutual Bank, the The Seller is a federal savings association[____], duly organized, validly existing and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws State of the United States[____].
(ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Mortgage Loan Purchase and Sale Agreement (WaMu Asset Acceptance Corp.)
Additional Seller Representations and Warranties. Each (a) As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing DateSCE that:
(i) If Seller is/ is not {SCE note: select applicable option}an entity formed solely to engage in the Seller is Washington Mutual Bankdevelopment, the Seller is a federal savings association, duly organized, validly existing construction and in good standing under the laws operation of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is Project (a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.“Special Purpose Entity”); and
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE.
(b) As of the Effective Date and, if applicable, as of each time that a Generating Facility is added to the Project, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any Product to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent necessary such benefits are conferred on another entity pursuant to ensure an order of the enforceability CPUC or at the direction of SCE.
(c) On each Mortgage Loan. The Seller has day on which Project Security in the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver form of cash is held by SCE under this Agreement, Seller hereby represents and warrants that:
(i) Seller has good title to and is the Term Sheetsole owner of such Project Security;
(ii) Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and
(iii) Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance rights of this Agreement by the Seller and the consummation any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto.
(d) On the Initial Delivery Date and on each day Seller provides information to SCE or updates Exhibit B, includingSeller hereby represents and warrants that: (i) the information contained in Exhibit B is correct and accurate and (ii) Seller has provided SCE with true and correct, without limitationup-to-date copies of all documents, if any, related to the repurchase obligations herein containedinterconnection of the Project.
(e) As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider that the disease designated COVID-19 or the related virus designated SARS-CoV-2 have been duly and validly authorized. This Agreementcaused, or will cause, a delay in construction of the Term Sheet, Project or the Confidential Pricing Supplement and all other documents and instruments contemplated hereby delivery of materials necessary to which complete the Seller is a partyProject, in each case assuming due authorization, execution and delivery by that would cause the Purchaser, evidence Initial Delivery Date to be later than the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its termsExpected Initial Delivery Date.
(iiif) No consent, approval, authorization, or order Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement
Additional Seller Representations and Warranties. Each Seller represents and warrants, to SCE that no part of the Sellers herebyProject was installed or operational at any time before January 1, severally and not jointly2010 as provided in the CPUC Decision ▇▇-▇▇-▇▇▇ (a “New Resource”). On each day on which Project Security is held by SCE under this Agreement, Seller hereby represents and warrants that: Seller has good title to and is the Purchaser as to sole owner of such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunderProject Security, and with respect to such Mortgage Loans, as of such Closing Date:
(i) If the Seller is Washington Mutual Bank, the Seller is a federal savings association, duly organized, validly existing and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.
(ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of the covenants and agreements of this Agreement do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including the Project Security, other than the security interests and liens created under this Agreement; Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Seller and the consummation rights of any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto. As of the Effective Date, includingSeller represents and warrants to SCE that Seller has not used, without limitationgranted, pledged, assigned, sold or otherwise committed any Product to meet the repurchase obligations herein containedRA Compliance Obligations of, have been duly or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent such benefits are conferred on another entity pursuant to an order of the CPUC or at the direction of SCE. Seller represents and validly authorizedwarrants to SCE that Seller has provided to SCE a list of services that Seller currently provides to SCE or to any other entity using the Storage Unit(s), in addition to the Product delivered to SCE under this Agreement. This Seller’s Covenants. Seller shall own and operate the Project. Seller shall maintain ownership of and demonstrable exclusive rights to the Project throughout the Term. Seller shall deliver to SCE the Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person. Seller shall obtain, maintain and remain in compliance with all Permits, agreements (including interconnection agreements) and rights (including transmission rights) necessary to operate the Project and provide the Product to SCE in accordance with this Agreement, . Seller shall maintain and preserve its existence as a [insert applicable corporate incorporation information] formed under the Term Sheet, laws of the Confidential Pricing Supplement State of [XX] and all other documents material rights, privileges and instruments contemplated hereby franchises necessary or desirable to which enable it to perform its obligations under this Agreement. Seller shall maintain the Seller is a partyProject as fully deliverable for the purposes of counting the Product, in each case assuming due authorizationan amount equal to the Contract Capacity, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, towards RA Compliance Obligations. Seller shall (i) provide all information needed for the Product to bankruptcybe shown on Supply Plans and RA Compliance Showings and to be used to satisfy RA Compliance Obligations, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, including providing information with respect to the amount of Flexible Capacity and other laws of general applicability relating Inflexible Capacity available to or affecting creditor’s rights, be included in any applicable Supply Plan and RA Compliance Showing and (ii) provide any information requested by SCE related to general principles of equity, whether such enforcement the Project that is sought required to be provided to the CAISO or CPUC in a proceeding in equity or at laworder for SCE to comply with Applicable Laws. All requisite corporate action has been taken Seller shall obtain Site Control by the date specified therefor in the Critical Path Development Milestone Schedule. If Seller agrees to use the Storage Unit(s) to provide any services to SCE or to any other entity in addition to the Product delivered to SCE under this Agreement, Seller shall inform SCE regarding such additional services in writing prior to providing such additional services. Upon SCE’s request, Seller shall provide SCE with an update regarding any previously reported additional services or any new additional services delivered to SCE or any other entity. If Seller uses the Storage Unit(s) to provide any other service to SCE or to any other entity in addition to the Product delivered to SCE under this Agreement, Seller shall do so in compliance with the rules set forth in CPUC Decision (D.) ▇▇-▇▇-▇▇▇ regarding multiple-use application issues for energy storage devices, as such rules are amended, modified or updated from time to time. Throughout the Delivery Period: Seller shall own or have the exclusive right to the Product, and shall furnish SCE, the CPUC, each applicable Governmental Authority, and the CAISO with such evidence as may reasonably be requested to demonstrate such ownership or exclusive right. No portion of the Product will be committed by Seller to make this Agreement valid any third party in order to satisfy RA Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets, other than pursuant to an RMR Contract between the CAISO and binding upon Seller. If the CAISO designates any portion of the Project as CPM Capacity Seller shall, and shall cause each Storage Unit’s SCE to: Promptly (and in any event within one (1) Business Day of the ▇▇▇▇ ▇▇▇▇▇▇ or such SC receives notification from the CAISO) notify SCE and Not accept any such designation by the CAISO unless and until SCE has agreed to accept such designation, provided that SCE shall have the exclusive right to offer the Product and Project, or any portion thereof, to the CAISO as CPM Capacity. Seller shall, and shall cause each Storage Unit’s SC to comply with Applicable Laws, relating to the Product. SCE shall have no liability for the failure of Seller or the failure of any Storage Unit’s SC to comply with Applicable Laws, including any penalties, charges or fines imposed on Seller or any Storage Unit’s SC for such noncompliance. Seller shall notify the SC of each Storage Unit that Seller has transferred the Product to SCE, with respect to each day of each Showing Month, and shall cause such SC to deliver the Supply Plans in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating the CAISO Tariff and this Agreement. Seller shall cause each Storage Unit’s SC to provide to the transactions contemplated by SCE, at least fifteen (15) Business Days before the relevant deadlines for each RA Compliance Showing, the applicable Expected Contract Quantity of such Storage Unit for each day of such Showing Month, including the amount of Flexible Capacity and Inflexible Capacity, that is to be submitted in the Supply Plan associated with this Agreement and for the transfer of legal title applicable period. Seller shall notify each Storage Unit’s SC that SCE is entitled to the Mortgage Loans revenues set forth in Section 3.07, and shall cause such SC to promptly deliver those revenues to SCE, along with appropriate documentation supporting the Purchaseramount of those revenues. Seller shall maintain Site Control. Seller shall not use, is required as grant, pledge, assign, sell or otherwise commit any Product to meet the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision RA Compliance Obligations of, or conflict with or constitute a default under, or result in the acceleration of any obligation underconfer Resource Adequacy Benefits upon, any material agreemententity other than SCE during the Delivery Period, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, except to the best extent such benefits are conferred on another entity pursuant to an order of the Seller’s knowledge, threatened, against CPUC or at the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment direction of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunderSCE.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Energy Storage Resource Adequacy Purchase and Sale Agreement (Energy Put Option)
Additional Seller Representations and Warranties. Each of the Sellers hereby, severally and not jointly, The Seller hereby represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such the Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing Date:
(i) If the Seller is Washington Mutual Bank, the The Seller is a federal savings associationcorporation, duly organized, validly existing and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws State of the United StatesDelaware.
(ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s 's rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter certificate of incorporation or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s 's knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s 's judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“"HUD”") approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Mortgage Loan Purchase and Sale Agreement (WaMu Asset Acceptance Corp.)
Additional Seller Representations and Warranties. Each (a) As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing DateSCE that:
(i) If Seller is/ is not {SCE note: select applicable option}an entity formed solely to engage in the Seller is Washington Mutual Bankdevelopment, the Seller is a federal savings association, duly organized, validly existing construction and in good standing under the laws operation of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is Project (a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.“Special Purpose Entity”); and
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE.
(b) As of the Effective Date and, if applicable, as of each time that a Generating Facility is added to the Project, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any Product to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent necessary such benefits are conferred on another entity pursuant to ensure an order of the enforceability CPUC or at the direction of SCE.
(c) On each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver day on which Project Security is held by SCE under this Agreement, Seller hereby represents and warrants that:
(i) Seller has good title to and is the Term Sheetsole owner of such Project Security, and the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of the covenants and agreements of this Agreement do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including the Project Security, other than the security interests and liens created under this Agreement;
(ii) Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and
(iii) Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Seller and the consummation rights of any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto.
(d) On the Initial Delivery Date and on each day Seller provides information to SCE or updates Exhibit B, including, without limitation, the repurchase obligations herein contained, have been duly Seller hereby represents and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a party, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, warrants that: (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, the information contained in Exhibit B is correct and other laws of general applicability relating to or affecting creditor’s rights, accurate and (ii) Seller has provided SCE with true and correct, up-to-date copies of all documents, if any, related to general principles the interconnection of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its termsProject.
(iiie) No consent, approval, authorization, or order Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement
Additional Seller Representations and Warranties. Each of the Sellers hereby, severally and not jointly, Seller represents and warrants to SCE that no part of the Purchaser Project was installed or operational at any time before January 1, 2010 as to such Seller as of provided in the CPUC Decision ▇▇-▇▇-▇▇▇ (a “New Resource”). On each Closing Date day on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing Date:
(i) If the Seller Project Security is Washington Mutual Bank, the Seller is a federal savings association, duly organized, validly existing and in good standing held by SCE under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.
(ii) The Seller has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, Seller hereby represents and warrants that: Seller has good title to and is the Term Sheetsole owner of such Project Security, and the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of the covenants and agreements of this Agreement do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including the Project Security, other than the security interests and liens created under this Agreement; Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Seller and the consummation rights of any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto. As of the Effective Date, includingSeller represents and warrants to SCE that Seller has not used, without limitationgranted, pledged, assigned, sold or otherwise committed any Product to meet the repurchase obligations herein containedRA Compliance Obligations of, have been duly or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent such benefits are conferred on another entity pursuant to an order of the CPUC or at the direction of SCE. Seller represents and validly authorizedwarrants to SCE that Seller has provided to SCE a list of services that Seller currently provides to SCE or to any other entity using the Storage Unit(s), in addition to the Product delivered to SCE under this Agreement. This Seller’s Covenants. Seller shall own and operate the Project. Seller shall maintain ownership of and demonstrable exclusive rights to the Project throughout the Term. Seller shall deliver to SCE the Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person. Seller shall obtain, maintain and remain in compliance with all Permits, agreements (including interconnection agreements) and rights (including transmission rights) necessary to operate the Project and provide the Product to SCE in accordance with this Agreement, . Seller shall maintain and preserve its existence as a [insert applicable corporate incorporation information] formed under the Term Sheet, laws of the Confidential Pricing Supplement State of [XX] and all other documents material rights, privileges and instruments contemplated hereby franchises necessary or desirable to which enable it to perform its obligations under this Agreement. Seller shall maintain the Seller is a partyProject as fully deliverable for the purposes of counting the Product, in each case assuming due authorizationan amount equal to the Contract Capacity, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforceability, towards RA Compliance Obligations. Seller shall (i) provide all information needed for the Product to bankruptcybe shown on Supply Plans and RA Compliance Showings and to be used to satisfy RA Compliance Obligations, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, including providing information with respect to the amount of Flexible Capacity and other laws of general applicability relating Inflexible Capacity available to or affecting creditor’s rights, be included in any applicable Supply Plan and RA Compliance Showing and (ii) provide any information requested by SCE related to general principles of equity, whether such enforcement the Project that is sought required to be provided to the CAISO or CPUC in a proceeding in equity or at laworder for SCE to comply with Applicable Laws. All requisite corporate action has been taken Seller shall obtain Site Control by the date specified therefor in the Critical Path Development Milestone Schedule. If Seller agrees to use the Storage Unit(s) to provide any services to SCE or to any other entity in addition to the Product delivered to SCE under this Agreement, Seller shall inform SCE regarding such additional services in writing prior to providing such additional services. Upon SCE’s request, Seller shall provide SCE with an update regarding any previously reported additional services or any new additional services delivered to SCE or any other entity. If Seller uses the Storage Unit(s) to provide any other service to SCE or to any other entity in addition to the Product delivered to SCE under this Agreement, Seller shall do so in compliance with the rules set forth in CPUC Decision (D.) ▇▇-▇▇-▇▇▇ regarding multiple-use application issues for energy storage devices, as such rules are amended, modified or updated from time to time. Throughout the Delivery Period: Seller shall own or have the exclusive right to the Product, and shall furnish SCE, the CPUC, each applicable Governmental Authority, and the CAISO with such evidence as may reasonably be requested to demonstrate such ownership or exclusive right. No portion of the Product will be committed by Seller to make this Agreement valid any third party in order to satisfy RA Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets, other than pursuant to an RMR Contract between the CAISO and binding upon Seller. If the CAISO designates any portion of the Project as CPM Capacity Seller shall, and shall cause each Storage Unit’s SCE to: Promptly (and in any event within one (1) Business Day of the ▇▇▇▇ ▇▇▇▇▇▇ or such SC receives notification from the CAISO) notify SCE and Not accept any such designation by the CAISO unless and until SCE has agreed to accept such designation, provided that SCE shall have the exclusive right to offer the Product and Project, or any portion thereof, to the CAISO as CPM Capacity. Seller shall, and shall cause each Storage Unit’s SC to comply with Applicable Laws, relating to the Product. SCE shall have no liability for the failure of Seller or the failure of any Storage Unit’s SC to comply with Applicable Laws, including any penalties, charges or fines imposed on Seller or any Storage Unit’s SC for such noncompliance. Seller shall notify the SC of each Storage Unit that Seller has transferred the Product to SCE, with respect to each day of each Showing Month, and shall cause such SC to deliver the Supply Plans in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or governmental agency or body relating the CAISO Tariff and this Agreement. Seller shall cause each Storage Unit’s SC to provide to the transactions contemplated by SCE, at least fifteen (15) Business Days before the relevant deadlines for each RA Compliance Showing, the applicable Expected Contract Quantity of such Storage Unit for each day of such Showing Month, including the amount of Flexible Capacity and Inflexible Capacity, that is to be submitted in the Supply Plan associated with this Agreement and for the transfer of legal title applicable period. Seller shall notify each Storage Unit’s SC that SCE is entitled to the Mortgage Loans revenues set forth in Section 3.06, and shall cause such SC to promptly deliver those revenues to SCE, along with appropriate documentation supporting the Purchaseramount of those revenues. Seller shall maintain Site Control. Seller shall not use, is required as grant, pledge, assign, sell or otherwise commit any Product to meet the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision RA Compliance Obligations of, or conflict with or constitute a default under, or result in the acceleration of any obligation underconfer Resource Adequacy Benefits upon, any material agreemententity other than SCE during the Delivery Period, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, except to the best extent such benefits are conferred on another entity pursuant to an order of the Seller’s knowledge, threatened, against CPUC or at the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment direction of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunderSCE.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Energy Storage Resource Adequacy Purchase and Sale Agreement
Additional Seller Representations and Warranties. Each As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to SCE that: Seller ☐ is/ ☐ is not {SCE Note: select applicable option} an entity formed solely to engage in the Purchaser as development, construction and operation of the Project (a “Special Purpose Entity”); Seller has provided SCE with true and correct, up-to-date copies of all of the Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE; Seller has considered long-term risks to the Project associated with climate change. As of the Effective Date and throughout the Delivery Period, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any portion of the generating capacity of the Project to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent such Seller as benefits are conferred on another entity pursuant to an order of the CPUC or at the direction of SCE. On each Closing Date day on which Project Security in the form of cash is held by SCE under this Agreement, Seller hereby represents and warrants that: Seller has good title to and is the sole owner of such Project Security; Upon the posting of Project Security by Seller sells Mortgage Loans hereunderto SCE, SCE shall have a valid and perfected first priority continuing Security Interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the rights of any present or future holder of any of the Project Security with respect hereto. On the Initial Delivery Date and on each day Seller provides information to such Mortgage LoansSCE or updates Exhibit B, as of such Closing Date:
Seller hereby represents and warrants that: (i) If the Seller information contained in Exhibit B is Washington Mutual Bank, the Seller is a federal savings association, duly organized, validly existing correct and in good standing under the laws of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is a federal savings bank, duly organized, validly existing accurate and in good standing under the laws of the United States.
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses documents, if any, related to the interconnection of the Project. As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider that the disease designated COVID-19 or the related virus designated SARS-CoV-2 have caused, or are reasonably likely to cause, a delay in the construction of the Project or the delivery of materials necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in complete the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by the Seller and to the extent necessary to ensure the enforceability of each Mortgage Loan. The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet, the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations herein contained, have been duly and validly authorized. This Agreement, the Term Sheet, the Confidential Pricing Supplement and all other documents and instruments contemplated hereby to which the Seller is a partyProject, in each case assuming due authorization, execution and delivery by that would cause the Purchaser, evidence Initial Delivery Date to be later than the valid, binding and enforceable obligations Expected Initial Delivery Date. As of the SellerInitial Delivery Date, subject Seller represents and warrants to SCE that the Project: was not installed or operational at any time before the Effective Date; and has a remaining design life of at least [#] years after the Initial Delivery Date as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws attested by an Independent Engineer; {SCE Note: design life should extend at least until end of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(iii) No consent, approval, authorizationDelivery Period, or order longer based on accounting considerations.} Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement
Additional Seller Representations and Warranties. Each (a) As of the Sellers herebyEffective Date, severally and not jointly, Seller represents and warrants to the Purchaser as to such Seller as of each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to such Mortgage Loans, as of such Closing DateSCE that:
(i) If Seller is/ is not {SCE note: select applicable option}an entity formed solely to engage in the Seller is Washington Mutual Bankdevelopment, the Seller is a federal savings association, duly organized, validly existing construction and in good standing under the laws operation of the United States. If the Seller is Washington Mutual Bank fsb, the Seller is Project (a federal savings bank, duly organized, validly existing and in good standing under the laws of the United States.“Special Purpose Entity”); and
(ii) The Seller has provided SCE with true and correct, up-to-date copies of all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such states require licensing or qualification in order to conduct business of the type conducted by Interconnection Studies, if any, to enable delivery of the Project’s output to the Interconnection Point pursuant to Applicable Laws and to enable Seller to provide the Product to SCE.
(b) As of the Effective Date and, if applicable, as of each time that a Generating Facility is added to the Project, Seller represents and warrants to SCE that Seller has not used, granted, pledged, assigned, sold or otherwise committed any Product to meet the RA Compliance Obligations of, or conferred Resource Adequacy Benefits upon, any entity other than SCE during the Delivery Period, except to the extent necessary such benefits are conferred on another entity pursuant to ensure an order of the enforceability CPUC or at the direction of SCE.
(c) On each Mortgage Loan. The Seller has day on which Project Security in the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver form of cash is held by SCE under this Agreement, Seller hereby represents and warrants that:
(i) Seller has good title to and is the Term Sheetsole owner of such Project Security;
(ii) Upon the posting of Project Security by Seller to SCE, SCE shall have a valid and perfected first priority continuing Security Interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and
(iii) Seller is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the Confidential Pricing Supplement and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance rights of this Agreement by the Seller and the consummation any present or future holder of any of the transactions contemplated herebyProject Security with respect hereto.
(d) On the Initial Delivery Date and on each day Seller provides information to SCE or updates Exhibit B, includingSeller hereby represents and warrants that: (i) the information contained in Exhibit B is correct and accurate and (ii) Seller has provided SCE with true and correct, without limitationup-to-date copies of all documents, if any, related to the repurchase obligations herein containedinterconnection of the Project.
(e) As of the Effective Date, Seller represents and warrants to SCE that it has not received notice from or been advised by any existing or potential supplier or service provider that the disease designated COVID-19 or the related virus designated SARS-CoV-2 have been duly and validly authorized. This Agreementcaused, or are reasonably likely to cause, a delay in the Term Sheet, construction of the Confidential Pricing Supplement and all other documents and instruments contemplated hereby Project or the delivery of materials necessary to which complete the Seller is a partyProject, in each case assuming due authorization, execution and delivery by that would cause the Purchaser, evidence Initial Delivery Date to be later than the valid, binding and enforceable obligations of the Seller, subject as to enforceability, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights, and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its termsExpected Initial Delivery Date.
(iiif) No consent, approval, authorization, or order Seller also makes the additional representations and warranties set forth in Section 9.02 of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the applicable Closing Date, be obtained, except for any recordation of Mortgages or assignments of Mortgages or filing of UCC financing statements or amendments thereto to or for the benefit of the Purchaser pursuant to this AgreementAttachment 1.
(iv) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not (i) result in the breach of any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which the Seller or its property is subject or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(v) There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened, against the Seller which, either in any one instance or in the aggregate, is likely, in the Seller’s judgment, to result, in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development (“HUD”) approved mortgagee pursuant to Section 203 of the National Housing Act of 1934, as amended. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD.
(vii) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition, financial or otherwise, or the operations, of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title to a Mortgage, the Seller shall retain such record title to such Mortgage solely in trust for the Purchaser as owner thereof.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement